Morillo v River Park Assoc. L.P.

[*1] Morillo v River Park Assoc. L.P. 2005 NY Slip Op 50138(U) Decided on January 10, 2005 Civil Court Of The City Of New York, Bronx County Guzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2005
Civil Court of the City of New York, Bronx County

ANA MORILLO, Plaintiff(s),

against

RIVER PARK ASSOCIATES L.P., R.Y. MANAGEMENT CO., INC., and HARLEM RIVER PARK HOUSES, INC., Defendant(s).



856/03

Wilma Guzman, J.

The court, upon due deliberation having been had, decides all motions and cross-motions simultaneously; and renders its decision as follows:

Plaintiff's motion to vacate this Court's Order issued December 10, 2004, is hereby granted. Plaintiff's motion for summary judgment on the issue of liability and for costs is hereby denied. Defendants' cross-motion for preclusion is hereby denied.

This is an action for injuries sustained by plaintiff due to the alleged negligence by defendant owners and landlords for failing to repair a window in plaintiff tenant's apartment. There was a conditional, self-executing preclusion order, which became absolute upon defendant's failure to comply. The preclusion order precluded defendants' testimony for failure to appear for an examination before trial and waived defendants' right to an independent medical examination for failure to timely designate a doctor. Instead of filing a motion to vacate the preclusion order, defendants filed a motion for an order compelling plaintiff to appear for an independent medical examination and to respond to discovery and inspection demands. Plaintiff filed a cross-motion for summary judgment on the issue of liability. Plaintiff failed to appear on the date of the motion and defendants' motion was granted on default, while plaintiff's cross-motion was denied on default. Pursuant to Section 2221(a) of the C.P.L.R., plaintiff moves this Court to vacate or modify the Court's Order issued December 10, 2004, to grant plaintiff's motion for summary judgment, and to [*2]grant costs to plaintiff. Defendants cross-move this Court for an order precluding plaintiff from testifying at trial and in opposition to plaintiff's motion to vacate.

Vacate Default Judgment

It is strong policy of the Courts that, in the absence of real prejudice, a matter should be disposed of on its merits. Noriega v. Presbyterian Hospital, 305 AD2d 220, 761 N.Y.S.2d 18 (1st Dept. 2003). Vacating a default judgment is proper upon a showing of excusable default and a meritorious cause of action. See, Crespo v. A.D.A. Management, et al, 292 AD2d 5, 739 N.Y.S.2d 49 (1st Dept.2002). Plaintiff has set forth an excusable default by way of an attorney affirmation which states that plaintiff's attorney appeared on the date of the motion, waited around nearly all day, investigated and determined that the motion was not on the calendar. Plaintiff has also set forth a meritorious claim by way of an affirmation stating that she sustained injuries as a result of a broken window which caused venetian blinds to detach and fall upon her. It must be noted that "great liberality" in pleading is shown in relieving parties from default so that cases may be resolved by trial on the merits. John T. Brady & Co., Inc. v. City of New York, 429 N.Y.S.2d 530, 104 Misc 2d 773 (NY Sup. Ct. 1980). Plaintiff has demonstrated an excusable default and a meritorious claim. Therefore, the motion to vacate is hereby granted. Accordingly, the order issued December 10, 2004 is hereby vacated. Given that this Court has vacated said order, plaintiff's alternative theories in support of vacatur need not be addressed.

Res Judicata and Collateral Estoppel

Plaintiff contends that summary judgment is mandated because the liability was litigated and determined in Housing Court and that defendants admitted that the windows in plaintiff's apartment were defective. The evidence provided by plaintiff is a copy of an alleged stipulation made by the landlord and plaintiff in a non-payment of rent proceeding in Housing Court. The stipulation, dated May 29, 1994, states "T alleges following repairs: b)bedroom windows" and landlord agreed to inspect and repair as necessary. The statements contained in the stipulation are merely allegations of defectiveness by plaintiff and landlord's rights to inspect and repair as necessary. The stipulation does not contain allegations of broken windows in the living room nor admissions by the landlord as to broken windows in the living room, the place of occurrence of the accident. Furthermore, the stipulation entered into in Housing Court, dated May 23, 1998, again merely states allegations by plaintiff, as tenant, of windows in need of repair, without identifying which windows and rooms. There has been no admission by the landlord in consenting to inspect and repair as necessary. In addition, plaintiff merely furnishes the "Judicial Request for Housing Inspection." The mere request for inspection does not establish that there was a violation. The stipulation fails to show defendants' admission to negligence as a result of defective windows. In addition, said stipulation did not litigate, nor was it a determination of the case on its merits on the issue of negligence. Furthermore, Housing Court deals with proceedings involving cases for the non-payment of rent, holdover, or repairs.

The doctrine of res judicata and collateral estoppel is based upon the notion that a party, or one in privity to a party, should not be permitted to re-litigate an issue already decided on its merits. Zimmerman v. Tower Insurance Company, 13 AD3d 137 (2004) and D'Arata v. New York Central Mutual Fire, 76 NY2d 659, 564 N.E.2d 634 (Ct. App. 1990). Collateral estoppel is grounded on concepts of fairness and should not be rigidly or mechanically applied. See D'Arata, [*3]supra at 664. Furthermore, whether a party had a full and fair opportunity to litigate a prior determination involves a practical inquiry into the realities of litigation, and where there was no actual litigation regarding this issue, there is no identity of issues between the present action and the prior determination. See Zimmerman, supra at 140. In order to invoke the doctrine of collateral estoppel and res judicata, two prongs must be satisfied:

1.the identical issue was necessarily decided in the prior proceeding and is decisive of the present action; and

2.there was a full and fair opportunity to contest that issue in the prior proceeding.

See Zimmerman, supra at 139, and D'Arata , supra at 664. The defendant would not have had the opportunity to litigate the issue of negligence in Housing Court. Insofar as there was no litigation and no determination of liability in the Housing Court proceeding, res judicata and collateral estoppel do not apply to the case at bar.

Preclusion Order Against Defendants

Plaintiff contends that defendants' disregard of a prior self-executing, preclusion order which directed defendants to appear for an examination before trial and to schedule an independent medical examination automatically resulted in the preclusion of defendant's trial testimony and waiver of the exam. This Court does not take violations of discovery orders lightly. As the Court of Appeals has stated: "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impugnity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders ... as are just,' including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully."

Kihl v. Pfeffer, 94 NY2d 118, 722 N.E.2d 55 (Ct. App. 1999).

When a party fails to comply with a conditional order of preclusion, the order becomes absolute. See VSP Associates, P.C. v. 46 Estates Corp., 243 AD2d 373, 664 N.Y.S.2d 556 (1st Dept. 1997), where the Court held "... when plaintiff failed to respond to the discovery demands within the 30 day limit set in the conditional preclusion order, the order became absolute." This Court finds that defendants have failed to comply with the conditional preclusion order, therefore, the order became self-executing and absolute. As such, defendants are precluded from offering testimony at trial and have waived their right to an independent medical exam.

Liability

Plaintiff also contends that the preclusion order, which precludes defendants from offering testimony, should result in a grant of summary judgment in favor of plaintiff because defendants are barred from offering any evidence that would raise a triable issue of fact. The First Department, Appellate Division, has held that summary judgment is not available based solely on a preclusion order. Vandros v. Kovacevic, 360 N.Y.S.2d 367, 79 Misc 2d 238 (1974). Furthermore, defendants' Answer was not stricken. Therefore, defendants are not precluded from establishing the affirmative defense of comparative negligence asserted in the Answer, which can possibly be established through [*4]cross-examination of plaintiff's witnesses. See Ramos v. Shendell Realty Group, Inc., 777 N.Y.S.2d 644, 8 AD3d 41 (1st Dept. 2004).

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party. Assaf v. Ropog Cab Corp., 153 AD2d 520, 544 N.Y.S.2d 834 (1st Dept. 1989). It is well-settled that issue finding, not issue determination, is the key to summary judgment. Rose v. Da Ecib USA, 259 AD2d 258, 686 N.Y.S.2d 19 (1st Dept. 1999). Summary judgment will only be granted if there are no material, triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 N.Y.S.2d 498 (Ct. App.1957). This Court finds that a triable issue of fact exists with respect to plaintiff's comparative negligence. Therefore, plaintiff's motion for summary judgment is hereby denied.

CostsPursuant to 22 NYCRR §130-1.1(c), plaintiff requests sanctions and costs against defendants. Plaintiff alleges that defendants' conduct in obtaining the court order issued December 10, 2004 was "surreptitious." This Court has discretion to impose sanctions against a party that engages in frivolous or contumacious conduct. Agostini-Knops v. Knops, 11 AD3d 211, 783 N.Y.S.2d 328 (1st Dept. 2004) and Lanzot v. Blecher, 7 AD3d 408, 776 N.Y.S.2d 478 (1st Dept. 2004). This Court does not find that the defendant engaged in conduct that rose to the level of frivolous or contumacious conduct that would require sanctions and costs. Therefore, plaintiff's motion for costs is hereby denied.

Preclusion Order Against Plaintiff

Defendants cross-moves this court for a preclusion order against plaintiff for failing to appear for an independent medical examination and for failure to respond to defendant's discovery and inspection demands pursuant to the December 10, 2004 Order issued by this Court. Given that this Court has vacated the December 10, 2004 order and the fact that defendant has waived rights to such discovery pursuant to a preclusion order, defendants motion to preclude is hereby denied.

CONCLUSION

Plaintiff's motion to vacate this Court's Order issued December 10, 2004, is hereby granted. Plaintiff's motion for summary judgment on the issue of liability and for costs is hereby denied. Defendants' cross-motion for preclusion is hereby denied.

This constitutes the decision and Order of this Court.

Dated:______________________________

Bronx, New YorkHON. WILMA GUZMAN

Judge, Civil Court