Noboa-Jaquez v Town Sports Intl., LLC

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Noboa-Jaquez v Town Sports Intl., LLC 2012 NY Slip Op 31380(U) May 21, 2012 Supreme Court, New York County Docket Number: 116744/2009 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: $ALTANN SCARPULLA s. PART i9 Justlce - Index Number : 116744/2009 NOBOA-JAQUEZ. SOFIA INDEX NO. vs. TOWN SPORTS INTERNATIONAL SEQUENCE NUMBER : 002 MOTION DATE MOTION SEQ. NO. ?- SUMMARY JUDGMENT __ The following papen, numbered Ito Notice of MoUonlOrder to Show Came Answerlng Affldavlta - , ware read on this motion toHor -Affldavltr - Exhlblta IN o w IW s ) . IW s ) , - Exhibits __ _ Replylng Affldavlts _ . ._._ . . _ Upon the foregolng papers, It is ordered that thls motlon Is 4.lLL decided per the memorandum decision dated W C ~ disposes of motion sequence(s) no. 002 ... FILED MAY 2 3 2012 NEW Y ~ R K 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRLATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED 0DENIED GRANTED SETTLE ORDER 0DO NOT POST 0GRANTED IN PART 0OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE _ [* 2] Plaintiff, Index No.: 116744/2009 Submission Date: 0 1/04/20 12 - against- TOWN SPORTS INTERNATIONAL, LLC., d/b/a NEW YORK SPORTS CLUB, .- For Defendant: Wilson, EIser, Moskowitz, Edelman & Dicker LLP For Plaintiff Robert Schacht, P.C. Studio Legale 1001 Clove Road Staten Island, NY 10301 3 Gannett Drive White Plains, NY 10604-3407 Papers considered-in review of this motion for summary judgment: Aff in Support . . . . . , . , , . , . . . . 1 Aff in Opp and in Support of Cross Motion. . . . . . . . . . . . . . 2 Reply Aff and in Opp to Cross Motion. . . . . . , , , , , . . . 3 I FILED MAY 2 3 2012 NEW YORK COUNTY CLERKS OFFICE I HON. SALIANN SCARPULLA, J.: In this action to recover damages for personal injuries, defendant Town Sports International, LLC., d/b/a New York Sports Club ( NYSC ) moves for summary judgment dismissing the complaint. Plaintiff Sofia Noboa-Jaquez ( Noboa-Jaquez ) cross-moves to strike NYSC s answer and for summary judgment because of NYSC s alleged failure to provide discovery. 1 [* 3] This action arises out of injuries Noboa-Jaquez allegedly sustained on July 15, 2009 at a NYSC gym after slipping and falling in the gym s shower area. Noboa-Jaquez alleges that NYSC was negligent in allowing soapy water to accumulate on the floor adjacent to the showers. On June 8, 201 1, Noboa-Jaquez filed the note of issue, certifying that all necessary discovery was complete. On July 25,201 1, NYSC moved to vacate the note of issue and extend the Court s 60-day deadline for filing summary judgment motions. NYSC - . maintained that it was entitled to a second IklE to determine the extent of Noboa- - Vazquez s injuries. On September 14,2011, the Court directed the parties to schedule the second IME but denied NYSC s motion to vacate the note of issue and to extend the summary judgment motion deadline. On August 12, 201 1, NYSC filed this motion for summary judgment, arguing that the Court should dismiss the complaint because N Y S C did not have notice of, or create, the allegedly dangerous condition. NYSC further argues that Noboa-Jaquez assumed any risk of walking on the slippery floor because the condition was open and obvious. In opposition, Noboa-Jaquez argues that the Court should deny NYSC s motion because NYSC filed the motion after the 60-day deadline. Noboa-Jaquez further argues that there are issues of fact as to whether NYSC had constructive notice of the condition, and whether the risk was open and obvious. In its cross-motion, Noboa-Jaquez maintains that the Court should strike NYSC s answer and affirmative defenses because NYSC has 2 [* 4] failed to comply with several discovery demands Noboa-Jaquez made before she filed the note of issue. In its reply, NYSC argues that the deadline to file its summary judgment motion was extended five days because Noboa-Jaquez served the notice of filing of the note of issue by mail. NYSC maintains that, in any event, there was good cause for the delay because the handling attorney had a family emergency which forced him to be out of the office for five days before the deadline, and because NYSC was unable to verify when . . - - . Noboa-Vazquez filed the note of issue. In opposition to Noboa-Vazquez s cross-motion, NYSC argues that it has complied with all discovery demands. Discu$$ion Under CPLR fj 3212(a), the Court may set a deadline to file summary judgment motions of no less than 30 days and no more than 120 days after the filing of the note of issue. A court may only consider untimely motions if the movant has shown good cause for the delay. Brill v. City ofNew York,2 N.Y.3d 648,652 (2004). Here, it is undisputed that NYSC filed this motion outside the Court s 60-day deadline. NYSC argues that is entitled to a five-day extension under CPLR fj 2103(b) because Noboa-Jaquez served notice of the note of issue filing by mail. However, 2103(b) is inapplicable to the making of a summary judgment motion, for which the period prescribed by CPLR 5 32 12(a) is measured by the service of a paper but by the 3 [* 5] - filing of the note of issue. Group IX, Inc. v. Next Print. & Design Inc., 77 A.D.3d 530, I 530 (1 Dept. 2010). Further, NYSC has failed to show good cause for the late filing. The attorney representing NYSC in this matter affirms that he had a fainily emergency that forced him to be out of the office from August 3, 2001 to August 8,201 1. However, this accounts for only five days of the 60 days available to file the motion, and NYSC made no attempt to contact the Court to request an extension. Though the attorney affirms that he was - unable to verify the note of issue filing date because the date did not appear online, nowhere does he contest receipt of the notice of filing of the note of issue, which presumably listed the filing date, nor does he mention any attempts to contact NoboaJaquez to determine the filing date. Lastly, NYSC s filing a motion to strike the note of issue does not excuse its late .. filing of this motion, as the outstanding discovery related to damages, not liability, and this summary judgment motion is based entirely on the issue of NYSC s liability. See Diaz v. Altman, 298 A.D.2d 126 ( lSt Dept. 2002); Hernandez v. 620 W 189th Ltd. P ship, 7 Misc.3d 198, 201 (Sup. Ct. N.Y. County 2005). Accordingly, the Court denies NYSC s summary judgment motion as untimely. Defendant alleges reliance on Szabo v. XYZ, Two Way Radio Taxi Ass n,267 A.D.2d 134 (lSt Dept. 1999) andLucian0 v. Apple Maint. 62 Servs.,289 A.D.2d 90 (1 Dept. 2001) in believing that it was entitled to a five-day deadline extension. As these decisions had already been overruled when Noboa-Jaquez filed the note of issue, see Group IX, Inc., 77 A.D.3d at 530, they do not excuse N Y S C s untimely motion. 4 . .. . ---- - [* 6] I * The Court also denies Noboa-Vazquez s cropmotion to strike the answer based on NYSC s alleged failure to comply with discovery demands. Noboa-Vazquez filed the note of issue on June 7, 20 1 1, certifying that discovery was complete. Accordingly, she may not now seek further discovery, let alone attempt to strike NYSC s answer, based on discovery requested before she filed the note of issue. See Madison v. Sama, 92 A.D.3d 607, 607 ( lStDept. 2012). In accordance with the foregoing, it is hereby ORDERED that the summary judgment motion by defendant Town-Sports International LLC., d/b/a New York Sports Club is denied; and is further ORDERED that the motion by plaintiff Sofia Noboa-Jaquez for an order striking defendant s answer and granting Sofia Noboa-Jaquez permission to proceed to an inquest on damages, an order of preclusion against defendant, and an order dismissing defendant s affirmative defenses and granting sunimary judgment, is denied. This constitutes the decision and order of the Court. Dated: New York, New York May 2012 MAY 2 3 2012 NEW YORK COUNTY CLERK S OFFICE ENTER: ISaliann Scarpulla J.S.C. 1 5 u

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