Belles v Sit-N-Bull Pub, LLC
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Belles v Sit-N-Bull Pub, LLC 2017 NY Slip Op 30244(U) February 6, 2017 Supreme Court, Tioga County Docket Number: 46512 Judge: Eugene D. Faughnan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] At a Motion Term of the Supreme Court of the State of New York held in and for the Sixth Judicial District at the Tioga County Courthouse, Owego, New York, on the 9th day of DECEMBER, 2016. PRESENT: HON. EUGENE D. FAUGHNAN Justice Presiding STATE OF NEW YORK SUPREME COURT : TIOGA COUNTY SHAWN A. BELLES, DECISION AND ORDER Plaintiff, Index No.: RJI No.: -vs- 46512 2016-0291-M SIT-N-BULL PUB, LLC and JEFFREYS. HEITZENRATER, individually and as owner of SIT-N-BULL PUB, LLC, Defendants APPEARANCES: COUNSEL FOR PLAINTIFF: DIANA L. HUGHES, ESQ. Learned, Reilly, Learned & Hughes LLP 449 East Water Street Elmira, NY 14901-3410 COUNSEL FOR DEFENDANTS: ROBERT G. BULLIS, ESQ. Levene Gouldin & Thompson, LLP PO Box F-1706 Binghamton, NY 13902-0106 1 [* 2] EUGENE D. FAUGHNAN, J.S.C. This matter comes before the Court upon two separate motions. The first was made by the Plaintiff and the second, by the Defendant. The motion of Shawn A. Belles ("Plaintiff') is made pursuant to CPLR §§306-b, 2004 and 3025 dated October 21, 2016, seeking leave to amend his complaint, and extend the time in which to serve the complaint upon the Defendants. Sit-N-Bull Pub, LLC 1 and Jeffrey S. Heitzenrater ("Heitzenrater") (collectively "Defendants") filed a motion dated October 31, 2016 seeking summary judgment pursuant to CPLR §3212. The facts are not in significant dispute. Heitzenrater operates a bar called Sit-N-Bull at 107 Village Square, Painted Post, New York. The business is organized as a Limited Liability Corporation under the name Heitzenrater, LLC. Heitzenrater purchased the business from Sit-NBull, LLC in 1999, and continues to operate the bar at this same location; keeping the name SitN-Bull, but with a new Limited Liability Corporation. On June 14, 2013, Plaintiff was delivering beer for his employer to the bar, when he alleges a slip and fall injury occurring on Defendants' property. Specifically, Plaintiff alleges that he slipped and fell on grease near a grease box injuring his left shoulder, left elbow and right knee. Plaintiff also pursued a workers compensation claim through his employer. In December of 2014, Plaintiffs counsel began communicating with Defendants' insurance company, Dryden Mutual Insurance ("Dryden"), regarding the accident. Sporadic communication continued between Plaintiffs Counsel and Dryden until March of 2016. On April 6, 2016, Plaintiff filed a verified summons and complaint in the Tioga County Clerk's Office. Plaintiffs counsel retained a process server who attempted to serve Heitzenrater and SitN-Bull Pub, LLC (incorrectly) at the Painted Post location. The process server allegedly found 1 As more fully set forth infra, the intended defendants were Heitzenrater, LLC and Jeffrey S. Heitzenrater, both individually and d/b/a Sit-In-Bull. 2 [* 3] no one at the location and saw a "for sale" sign on the property. 2 The process server was allegedly unable to find a home address for Heitzenrater. Plaintiffs counsel then searched the New York Secretary of State database, and noted that Sit-N-Bull Pub, LLC was a registered entity and as such, sought to effectuate substitute service through the Secretary of State. On May 4, 2016, the Summons and Complaint were served in duplicate on the Secretary of State. Again, however, that Limited Liability Corporation is not the correct entity for this suit. Plaintiffs counsel provided a copy of the complaint to Dryden on July 19, 2016. Plaintiffs counsel granted Dryden's request for a "thirty day extension" to answer the complaint. On August 12, 2016, issue was joined by the service of Defendants' answer. The Defendants raised jurisdiction as an affirmative defense, based upon the fact that neither Heitzenrater nor Heitzenrater, LLC d/b/a Sit-N-Bull were served. Defendants also raised the statute of limitations as an affirmative defense, as the accident had occurred in June, 2013. Plaintiff now seeks to amend the complaint to add Heitzenrater, LLC d/b/a Sit-N-Bull3 and to extend the time in which to serve the complaint. Defendants seek summary judgment dismissing the complaint. Leave to Extend Time to Serve "Service of the summons and complaint... shall be made within one hundred twenty days after the commencement of the action or proceeding ... " CPLR 306-b. However, where a party fails to serve the complaint within 120 days of commencement of the action, the Court may " ... upon good cause shown or in the interest of justice, extend the time for service". CPLR 306-b. "[G]ood cause" and "the interest of justice" are two distinct bases which embody two separate standards. Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 (2001). Good cause requires a 2 Heitzenrater disputes the presence of a "for sale" sign and points out that the business continues to be a going concern. 3 Plaintiff also seeks to strike Sit-N-Bull Pub, LLC as a party. 3 [* 4] showing of reasonable diligence in effectuating service. Mead v. Singleman, 24 AD3d 1142, 1143 (3rd Dept. 2005). "[T]he discretionary interest of justice standard allows a court to consider such factors as the plaintiffs diligence in attempting service, the expiration of the statute of limitations, the meritorious nature of the claim, the length of the delay, diligence in seeking an extension of time and prejudice to the defendant" Heath v. Normile, 131 AD3d 754, 755 (3d Dept. 2015). In the present matter, it is undisputed that the only properly named party in the complaint is Jeffrey S. Heitzenrater, individually. Sit-N-Bull Pub, LLC is a prior entity that owned the subject business, and there is no showing that it had any connection to the subject business as of the date of Plaintiffs accident. Further, it is undisputed that Heitzenrater is neither a principal in nor has any connection to Sit-N-Bull Pub, LLC. However, Heitzenrater concedes that he does own the property where the accident occurred. Therefore, the Court will address the Plaintiffs application for leave to extend the time to serve the complaint only with regard to Heitzenrater. The Court concludes that the Plaintiff has failed to show good cause for the failure to serve the complaint within 120 days of filing pursuant to CPLR 306-b. The Plaintiff has failed to establish that he exercised reasonable diligence in attempting to locate Heitzenrater. It_ is entirely unclear from this record what steps were taken to locate Heitzenrater beyond Plaintiffs process server allegedly contacting local law enforcement and visiting his place of business. In fact, the record is devoid of any indication as to the day( s) or time( s) the process server went Heitzenrater' s business or what other steps were taken to locate him. With regard to the interest of justice standard, the Court reaches a different result. The Plaintiff did commence this action by filing a verified summons and complaint on April 6, 2016, which was well before the expiration of the statute of limitations. Although the Court has concluded that reasonable diligence was not used in attempting to serve Heitzenrater, the Court finds that the delay between the joining of the issue and the filing of this motion of 82 days was not 4 [* 5] excessive4• More importantly, the Plaintiff has a meritorious negligence claim for a slip and fall injury occurring on property owned by Heitzenrater, resulting in significant injuries. Additionally, there appears to be little prejudice to the Heitzenrater, as his insurance company was on notice regarding the claim as early as December 1, 2014 and had ample opportunity to investigate the claim well before the expiration of the statute of limitations. Finally, the Court notes that dismissal of this claim would result in a bar to any potential recovery in light of the expired statute of limitations. Therefore, the Court hereby extends the Plaintiff's time to serve the verified summons and complaint. The Plaintiff shall effectuate service upon Heitzenrater individually within 20 days of the entry of this decision. The Plaintiff's motion to extend the time to serve is GRANTED with regard to Heitzenrater individually, but DENIED with regard to the remaining Defendants. Defendants' motion for summary judgment is DENIED with regard to Heitzenrater individually, but GRANTED with regard to the remaining Defendants. Motion to Amend Verified Complaint "A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties" CPLR §3025(b). "Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. CPLR §3025(b). Plaintiff's Notice of Motion dated October 21, 2016 invokes CPLR §3025, and seeks leave to amend the verified complaint. Presumably, Plaintiff seeks to amend the complaint to include the proper parties. However, no further argument, proof or caselaw is submitted. Of particular 4 lt appears that Plaintiff was not aware that the entity served through the secretary of state was the wrong entity until the service of Defendants' verified answer. Additionally, Plaintiff granted an additional 30 days to answer the complaint thereby creating a greater delay from the time the action was filed. 5 [* 6] significance is the fact that no proposed amended verified complaint was served with the motion. On this record, the Court has no basis to evaluate the relevant issues pursuant to Buran v. Coupal, 87 NY2d 173 (1995). Therefore, pursuant to CPLR §3025(b), Plaintiffs motion to amend th~ verified complaint is DENIED WITHOUT PREJUDICE. THIS CONSTITUTES THE DECISION OF THIS COURT. Dated: h, February 20 17 Owego, New York Papers submitted on the Motions l) Plai ntiffs Notice of Motion dated October 21 , 2016, with Affidavit of Diana L. Hughes, sworn to on October 2 1, 20 16, with attached Exhibits; 2) Defendants' Notice of Motion dated October 3 1, 20 16, with Affirmation of Robert G. Bullis, dated October 3 I , 2016, and Affidavit of Jeffrey S. Heitzenrater, sworn to on October 26, 2016, with attached Exhibits; 3) Affidavit of Shawn A. Belles, sworn to on November 1, 2016; 4) Attorney Affirmation of Diana L. Hughes in opposition to Defendants' motion, dated November 30, 20 16 with attached Exhibits, and Memorandum of Law dated December 2, 20 16; 5) Affidavit of Jeffrey S. Heitzenrater, sworn to on November 25, 2016, with attached Exhibits and Answering Affirmation of Robert J. Bullis, sworn to on November 29, 2016, with attached Exhibits; 6) Answering Affirmation of Robert G. Bullis, dated December 7, 2016. 6
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