Kessler v Salanitro

[*1] Kessler v Salanitro 2008 NY Slip Op 51324(U) [20 Misc 3d 1112(A)] Decided on June 23, 2008 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2008
Supreme Court, Kings County

Arthur Kessler & PATRICIA KESSLER, Plaintiffs,

against

Alfred Salanitro & JOHN SALANITRO, Defendants.



36543/04



Wenig Saltiel & Greene, LLP

By: Meryl L. Wenig, Esq.

Attorney for Defendants

26 Court Street, Suite 502

Brooklyn New York, 11242

Eaton & Torrenzano, LLP

Attorney for Plaintiffs

1662 Sheepshead Bay Rd.

Brooklyn, New York 11235

Sylvia O. Hinds-Radix, J.

Defendants Alfred Salanitro and John Salanitro ("defendants" ) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and counter claim of plaintiffs Arthur Kessler and Patricia Kessler ("plaintiffs") insofar as asserted against them.

Factual background

On or about October 2004, plaintiffs commenced the instant action against the defendants alleging, inter alia, conversion, fraud, and breach of fiduciary duty relating to real properties in Brooklyn New York, located at 3032 Brighton 1st Street, 9 Brighton 1st Street, and 1439 East 13th [*2]Street. Defendants filed an answer to the complaint on or about December 17, 2004.

Thereafter, defendants on June 14, 2007, served plaintiffs with a Demand for Discovery and Inspection, Demand for Witnesses, Demand for Verified Bill of Particulars and Demand for Deposition. According to defendants, plaintiffs, then sought to strike defendants' answer for failure of defendants to comply with discovery, "overlooking that the prior summary judgment motion had stayed disclosure". Defendants contend that plaintiffs' motion to strike was resolved by short form order on June 28, 2007 which directed all parties to exchange outstanding discovery and inspection by September 28, 2007. The order also provided for depositions of all parties to be taken on October 23, 2007 at 10:00 a.m., at a location to be determined. Defense counsel asserts that after not receiving the aforementioned discovery by September 2007, she contacted plaintiffs' counsel and was advised by him that he "had been told to stop all work but had not been substituted out" as plaintiff's attorney. Thereafter, defendants move to have plaintiffs comply with their discovery demands or be precluded from testifying at trial. The motion was heard by the court on January 10, 2008. On said date, Ilya Novofastovsky, Esq. appeared in court on behalf of plaintiffs, and by short form order, executed a substitution of attorney replacing Eaton Torrenzano LLP as attorney for plaintiffs. The substitution order also provided, in part, that the outgoing attorney will turn over their complete file within five days from payment of disbursements, which shall be itemized in writing and faxed to plaintiffs' new counsel by the end of [business ] Friday, January 11, 2008. Plaintiffs' new counsel also agreed by short form order that plaintiffs will respond to outstanding discovery demands by February 15, 2008 or be precluded from offering any testimony or evidence related to the discovery items sought. When the plaintiffs failed to timely respond to defendants' discovery demands, defendants moved for summary judgment dismissing the complaint and counter claim as asserted against them, contending that plaintiffs are precluded from offering testimony or evidence in this matter.

Summary Judgment

In support of the motion for summary judgment, defendants contend that plaintiffs have done nothing for the past eight months to proceed with the instant action, that based on the January 10, 2008 order, plaintiffs, as a matter of law, are precluded from offering testimony or evidence to rebut defendants' motion. As, such, defendants contend that plaintiffs cannot demonstrate that actual issues of fact exist sufficient to defeat their motion for summary judgment.

In further support of the motion for summary judgment, defense counsel submits the affidavit of defendant Alfred Salanitro, in which he avers that plaintiffs have made the properties in issue unmarketable by filing notices of pendency and by falsely claiming a financial interest in the realty owned by the defendants. He contends that the plaintiffs and their original counsel have ignored their obligations; that they have taken little or no action to prosecute the instant case; and that their delayed action has prejudiced the rights of the defendants.

Default on Conditional Preclusion Order

A conditional discovery order becomes "absolute" upon the failure of the defaulting party to comply with its terms (see D'Aloisi v City of New York, 7 AD3d 750, 750 [2004]; [*3]Barriga v Sapo, 250 AD2d 795 [1998]). To be relieved from an order of preclusion, the party seeking relief must demonstrate (1) timely compliance with the conditional order, or an excusable default and a meritorious cause of action or defense (see D'Aloisi, 7 AD3d at 750; Frankel v Hirsch, 2 AD3d 399 [2003]; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]; Scarlett v McCarthy, 2 AD3d 623 [2003]; Westchester Med. Ctr. v. Clarendon Ins. Co., 304 AD2d 753 [2003]; Cobble Hill Nursing Home v Griffo, 240 AD2d 459, 460 [1997]). What constitutes a reasonable excuse is left to the sound discretion of the court (see Holt Constr. Corp. v J & R Music World, 294 AD2d 540 [2002]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).

The court finds that plaintiffs failed to comply with the January 10, 2008, conditional preclusion order and, therefore, plaintiffs are bound to demonstrate an excusable default and the existence of a meritorious claim to be relieved from the effects of said order (See, Dipietro v Duhl, 227 AD2d 575; Barrriga v Sapo, 250 AD2d 795 [1998]; D'Aloisi, 7 AD3d at 750; Orwell Bldg. Corp. 5 AD3d at 573; Scarlett, 2 AD3d at 623; Westchester Med. Ctr., 304 AD2d at 753).Plaintiffs' new counsel appeared in court on May 1, 2008 requesting additional time to respond to defendants' discovery request and to oppose the summary judgment motion.

Defense counsel strenuously objected to any further adjournment and argued that plaintiffs' counsel agreed in the January 10, 2008 order to respond to all outstanding discovery demands by February 15, 2008. Defense counsel further argued that plaintiffs are precluded from offering any testimony or evidence to rebut their summary judgment motion and as a matter of law, the court should grant their motion and dismiss the plaintiffs' complaint.

In order to succeed on a summary judgment motion, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v New York Univ. Medical Center, 64 NY2d 851 [1985]). Once the moving party has made a prima facie showing that it is entitled to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form that is sufficient to establish the existence of material issues of fact which requires a trial on the action (Graham & Han Real Estate Brokers, Inc., v. Oppenheimer, 148 A D2d 493 [2nd 1989]; Attanasio v Lashley, 636 NYS2d 834 {223 AD2d 614} [2nd Dept. 1996]; Armstrong v. Wolfe, 133 A D2d 957 [3rd Dept. 1987]). If the plaintiff fails to meet this burden, summary judgment will be granted to defendant (Zoldas v Louis Cab Corp., 108 AD2d 378 [1st Dept. 1985]). In the instant case, the court finds that defendants have by their submission established their prima facie entitlement to summary judgment. Thus, it was incumbent upon plaintiffs to come forward with admissible evidence to raise a triable issue of fact (see Gaddy v Eyler, 79 NY2d 955 [1992]).

In opposition to the motion, plaintiffs' counsel orally represented that at the time he agreed to the January 10, 2008 order, he had mistaken the extent of the discovery requested [*4]by the defendants. He stated that he diligently tried to comply with plaintiffs' discovery demands but was unable to do so within the time allowed. The court finds thatdespite counsel's representation, plaintiffs have failed to meet their burden of demonstrating the presence of triable issues. Notably, plaintiffs did not submit any papers in opposition to the instant motion. The oral representation by plaintiffs' counsel was not evidentiary proof in admissible form sufficient to establish the existence of material issues of fact thereby precluding summary judgment relief. "Mere oral argument of counsel, unsupported by affidavits or other evidence, cannot defeat a motion for summary judgment where the supporting papers show a prima facie entitlement to such relief" (See Shephard Oil Company, Inc v. Ryan, 62 AD2d 1074 [1978]; Holdridge v Town of Burlington, 32 AD2d 581 [1969]). The court is therefore constraint to grant defendants' motion for summary judgment dismissing the plaintiffs' complaint.Accordingly, for the foregoing reasons, the defendants' motion for an order granting summary judgment dismissing the plaintiffs' complaint and counter claim is granted.

This constitutes the decision and order of this court.

E N T E R,

J. S. C.