Han Bin Hu v Bravo Food Inc.

[*1] Han Bin Hu v Bravo Food Inc. 2016 NY Slip Op 50950(U) Decided on June 17, 2016 Supreme Court, Kings County Edwards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2016
Supreme Court, Kings County

Han Bin Hu, Plaintiff,

against

Bravo Food Inc., Bravo Ltd., Xin Xi Hu Food Ltd., and Van-Horne Street, L.L.C., Defendants.



502227/12
Genine D. Edwards, J.

The following e-filed papers read herein: NYSCEF No.:

Notice of Amended Motion, Affirmation, and

Exhibits Annexed 17-22, 24

Opposing Affirmation, Memorandum of Law and

Exhibits Annexed 26-31, 32

Reply Affirmation 34

In this action to recover damages for personal injuries, plaintiff Han Bin Hu moves, by amended notice of motion, for an order (1) compelling the completion of the examination before trial of the defendant Bravo Food Inc. (Bravo) or, alternatively, striking its answer, (2) granting him leave to amend his complaint to retroactively add Ting Oiging Chan (Chan) and Xin Xi Hu Noodles Inc. (Noodles) as defendants, and (3) extending the deadline for filing a note of issue.

Background

On February 14, 2011, plaintiff was injured while he was repairing a pasta maker in a food preparation/distribution business located at 345 Meserole Street in Kings County. The proposed defendant Chan is the sole owner of Bravo and of the proposed defendant Noodles, [*2]which may (or may not) have been plaintiff's employer at the time of his accident.[FN1]

On August 4, 2012, plaintiff commenced this negligence action against Van-Horne Street, L.L.C., the premises owner (Van-Horne); Bravo, the premises lessee and the owner of the pasta maker; Bravo Ltd. and Xin Xi Food Ltd. (collectively, the remaining defendants), which he alleged to have been either the owners and/or the operators of the food preparation/distribution business at the premises. Van-Horne and Bravo each answered the complaint, whereas the remaining defendants did not.

On June 24, 2015, Bravo produced Chan as a witness for an examination before trial. The deposition lasted from 10:30 a.m. to 5 p.m. with a 55-minute break for lunch. At the end of the deposition, the following colloquy occurred between plaintiff's and Bravo's respective counsel:

[Plaintiff's counsel]: I have at least another 5 to 40 minutes to find out how this repair [of the pasta maker] was and in what [manner] the Plaintiff got injured. We appear to be losing our Reporter now. I'm happy to continue tomorrow. If you're unable to continue tomorrow, we need to make arrangements to continue.[Bravo's counsel]: I have an all day deposition tomorrow, and you have had a lot of hours to conduct this witness[']s deposition. You've asked tons of questions that have nothing to do with this case. We have no intention of reproducing him. If you'd like to make a motion, feel free to do so." (Bravo tr at page 151, lines 4-17).

In August 2015, plaintiff served the instant motion. Although the motion seeks, among other things, leave to amend the complaint to add Chan and Noodles as party defendants, the motion is not accompanied by the proposed amended complaint.

Plaintiff's Request to Complete Bravo's Deposition

CPLR §3113 (b) provides, in relevant part, that "[t]he deposition shall be taken continuously and without unreasonable adjournment, unless the court otherwise orders or the witness and parties present otherwise agree." It was entirely reasonable for plaintiff's counsel to ask for "another 5 to 40 minutes to find out how this repair [of the pasta maker] was and in what [manner] the Plaintiff got injured," in order to complete Bravo's deposition. On the other hand, it was entirely unreasonable for Bravo's counsel to refuse to permit an adjournment of the deposition to enable its completion. Her proffered explanation — that plaintiff's counsel has "wasted so much time on irrelevant questions" (Bravo tr at page 152, line 13-14) — is unavailing in light of CPLR §3113 (b), which provides, in relevant part, that "[a]ll objections made at the time of the examination . . . to the testimony presented, or to the conduct of any person, and any other objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall proceed subject to the right of a person to apply for a protective order" [*3](emphasis added). Under CPLR §3113 (b), the burden was on Bravo's counsel to seek a protective order if she reasonably believed that the continued deposition would go far beyond the scope of this lawsuit, rather than for plaintiff to move to compel the completion of the deposition. Therefore, the branch of plaintiff's motion for an order directing that Bravo's deposition be completed is granted, as more fully set forth in the decretal paragraphs below. Conversely, the alternative branch of plaintiff's motion for an order striking Bravo's answer is denied as moot.

Plaintiff's Request for Leave to Amend the Complaint

CPLR §3025 (b) provides, in relevant part, that:

"Any motion to amend . . . pleadings shall be accompanied by the proposed amended . . . pleading clearly showing the changes or additions to be made to the pleading."

As the foregoing language makes it clear, a copy of the proposed amended pleading must be included with any motion seeking leave to amend. Plaintiff's motion here does not include a proposed amended complaint. Such omission, in and of itself, warrants the denial of leave to amend (see Loehner v Simons, 224 AD2d 591, 639 N.Y.S.2d 700 [2d Dept. 1996]; Goldner Trucking Corp. v Stoll Packing Corp., 12 AD2d 639, 640, 208 N.Y.S.2d 1004 [2d Dept. 1960]).

More fundamentally, the record here is unclear whether the workers' compensation immunity from plaintiff's claims is available to the proposed defendants Chan and Noodles. After the instant motion was fully submitted on March 18, 2016, the Second Department issued a decision in Mileski v MSC Indus. Direct Co., Inc., 138 AD3d 797, 30 N.Y.S.2d 159 (2d Dept. 2016), which, like the case here, concerned leave to amend the complaint to add as defendants the affiliates of the named defendant. In Mileski, the estate of a worker, who was injured and died from using an allegedly defective lathe, brought an action against the lathe manufacturer, which, in turn, impleaded the decedent's employer. In the course of litigation, the decedent's employer produced its president and co-owner for a pretrial deposition, at which he testified that three other corporations owned solely by him also operated in the same location as the decedent's employer and had access to the same lathe. Based on that pretrial testimony, the decedent's estate asked the motion court for leave to amend the complaint to add the president/co-owner and his three other corporations as defendants. The motion court granted leave to amend pursuant to CPLR §203 (b) and (c),[FN2] which codified the relation-back doctrine.[FN3] On appeal, the Second [*4]Department reversed and denied leave to amend. In so ruling, the Second Department cautioned that the application of the relation-back doctrine must be tempered by the following limitations:

"Defendants are not united in interest if there is a possibility that the new party could have a different defense than the original party. In a negligence action, the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other. The fact that two defendants may share resources such as office space and employees is not dispositive. They must also share exactly the same jural relationship in the subject action" (Mileski, 138 AD3d at 800 [internal quotation marks and citations omitted]).

Applying these principles to the facts in Mileski, the Second Department held that:

"[T]he plaintiff [the decedent's estate] cannot rely on the relation-back doctrine to save her untimely claims against the appellants [the proposed defendants]. Even if the appellants are united in interest with . . . the decedent's employer . . . and can be held vicariously liable for [the employer's] acts, then the immunity from the plaintiff's claims afforded to [the employer] by the Workers' Compensation Law is extended to them. Sharing the exact same jural relationship with [the decedent's employer] would render the appellants immune from the plaintiff's claims. Thus, the relation-back doctrine cannot be applied to the claims against the appellants, and those claims are time-barred. Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for leave to amend the complaint to add the appellants as additional defendants." (Mileski, 138 AD3d at 800 [internal citation omitted]).

As stated, the record on the instant motion is unclear whether the workers' compensation immunity from plaintiff's claims is available to the proposed defendants. If Noodles was plaintiff's employer and if, as plaintiff claims (in ¶ 7 of his counsel's opening affirmation), Chan, Noodles and Bravo "are so related in interest' that it is impossible to tell where the interests of one end and the others begin," then the immunity from plaintiff's claims afforded to Noodles by the Workers' Compensation Law could be extended to Chan as well as to Bravo (see Mileski, 138 AD3d at 800). Considering that leave to amend must be denied in any event for lack of the proposed amended complaint, plaintiff may, on renewal, supplement the record in light of the Second Department's intervening decision in Mileski. Accordingly, the branch of plaintiff's motion which is for leave to amend the complaint to add Chan and Noodles as defendants is denied without prejudice to renew on proper papers.

Plaintiff's Request for an Extension of Time to File a Note of Issue

22 NYCRR 202.21 (d) provides, in relevant part, that "[w]here a party is prevented from filing a note of issue and certificate of readiness because a pretrial proceeding has not been completed for any reason beyond the control of the party, the court, upon motion supported by affidavit, may permit the party to file a note of issue upon such conditions as the court deems [*5]appropriate." Plaintiff was unable to timely file a note of issue on account of (1) the unfinished pretrial deposition of Bravo, and (2) his outstanding requests for discovery, including photographs of the subject pasta maker. Accordingly, the remaining branch of plaintiff's motion which is for an extension of time to file a note of issue is granted, as more fully set forth in the decretal paragraphs below.

Conclusion

Accordingly, it is

ORDERED that within forty-five days after service of this decision and order with notice of entry on Bravo's counsel, Chan shall appear, on Bravo's behalf, for a continued deposition which shall be limited to the repairs of the pasta maker at issue and the manner in which plaintiff was injured, as well as those questions that flow from Chan's responses; and it is further

ORDERED that Bravo's continued deposition shall be held at a location and on a date and time that are mutually agreeable and convenient for the parties, except that such date must be within the aforementioned forty-five days; and it is further

ORDERED that the stay of disclosure under CPLR §3214 (b), resulting from the pendency of Van-Horne's motion for summary judgment (Seq. No. 3), is hereby lifted; and it is further

ORDERED that leave to amend the complaint to add Chan and Noodles as defendants is denied without prejudice to renew upon proper papers; and it is further

ORDERED that plaintiff's time to file a note of issue is hereby extended to September 30, 2016; and it is further

ORDERED that plaintiff's counsel shall serve the appearing defendants' respective counsel with a copy of this decision and order with notice of entry, and shall electronically file an affidavit of said service with the Kings County Clerk.

This constitutes the Decision and Order of the Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Chan testified that Noodles was plaintiff's employer (Bravo tr at page 76, lines 19-21; page 77, lines 10-16). Chan's testimony suggests that plaintiff was entitled to the workers' compensation benefits and that, correspondingly, Noodles was entitled to the immunity from plaintiff's claims under the Workers' Compensation Law. Yet, plaintiff testified that he was not receiving workers' compensation benefits and he did not know why (see Han Bin Hu Jan. 29, 2015 tr at page 237, line 8 to page 238, line 20).

Footnote 2:CPLR §203 (b) provides, in relevant part, that "[i]n an action which is commenced by service, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant. . . " (emphasis added). CPLR §203 (c) provides that "[i]n an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced" (emphasis added).

Footnote 3:A plaintiff seeking the benefit of the relation-back doctrine must establish that "(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining his or her defense on the merits by virtue of the delayed, and otherwise stale, assertion of those claims against him or her, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been timely commenced against him or her as well" (Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982, 876 N.Y.S.2d 147 [2d Dept. 2009]).