Aneke v Parks
Annotate this CaseDecided on August 1, 2017
Supreme Court, Kings County
Luke Aneke, Plaintiff,
against
Dr. Trevor Parks, Fasal Yussuff, Brian Persaud, Dr. Brenda Harris, Dr. Lisa Choleff, George Strachan, Dr. Jean Richards, Corizon (Formerly Known as PHS Medical Services and American Service Group), Defendants.
10173/12
Plaintiff's Attorney:
Wallace & Associates, P.C.
By Larry Wallace, Esq.
One Brooklyn Bridge Park
360 Furman Street, Suite 723
Brooklyn, New York 11201
(718) 596-6146
Defendants' Attorney:
Saiber LLC
By Jennine DiSomma, Esq.
270 Madison Avenue, Suite 1400
New York, New York 10016
(646) 532-4646
David W. Fink, Esq.
Edgar G. Walker, J.
Defendants Fasal Yussuff, Brian Persaud, Dr. Brenda Harris, Dr. Lisa Choleff, George Strachan, Dr. Jean Richards and Corizon (hereinafter referred to as defendants) moved for summary judgment, and their motion is granted. The defendants' order to show cause seeking to strike the amended affirmation of plaintiff's attorney Larry Wallace, the plaintiff's amended memorandum of law and the affirmation of the plaintiff Luke Aneke, offered in opposition to the defendants' motion for summary judgment is granted to the extent that those documents were not considered in rendering the decision on the defendant's motion for summary judgment. The plaintiff's cross motion for an extension of time to submit opposition papers to the defendants' [*2]summary judgment motion is denied.
The defendants filed a motion for summary judgment in this case which first appeared on the Part 90 motion calendar on November 18, 2016. The motion was thereafter adjourned multiple times by the parties to permit the plaintiff to submit opposition papers. On March 9, 2017, one day prior to the agreed upon date that the motion would be argued, the plaintiff's attorney filed papers in opposition with the Court, containing exhibits lettered A through M and also numbered 1 through 20. Plaintiff's counsel also filed an affidavit of service with the Court on March 9, 2017, attesting to the fact that he served the opposition papers and copies of all of the exhibits upon counsel for the defendants both by electronic mail and by "depositing a true copy of the same enclosed by regular mail in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York."
Prior to the return date of the defendants' motion for summary judgment, the defendants filed an order to show cause seeking to strike the plaintiff's opposition papers as untimely. However, the order to show cause was given a return date of May 5, 2017, which was after the return date of the motion.
On March 10, 2017, this Court heard oral arguments on the defendants' motion. It was at that time that plaintiff's counsel attempted to hand up a copy of his opposition papers with copies of all of the exhibits annexed thereto. Defendants' counsel objected to the plaintiff's late submission, contending that she was never served with copies of the plaintiff's exhibits, and that plaintiff's counsel had just handed her, only moments prior, a document that had not previously been exchanged which listed the exhibits that he was offering as part of his opposition to the defendants' motion, as well as a disc that purportedly contained digital copies of the exhibits annexed to his opposition papers. The motion was marked fully submitted and the defendants' attorney accepted the disc, but was given leave to submit further papers if necessary.
By letter dated March 12, 2017, and without leave to do so, plaintiff's counsel mailed to the Court the same list of exhibits that he had provided to defense counsel on the return date of the motion, as well as an affirmation from the plaintiff, who is a physician, which plaintiff's counsel conceded "was not listed in my list of exhibits." He also stated that he was "not sure if it was annexed to the other opposition papers" despite the fact that he referred to it in the plaintiff's affirmation in opposition. Plaintiff's counsel also conceded that it did not bear the original signature of the plaintiff because the plaintiff "is in Africa" and plaintiff's counsel was "still awaiting the original signature page." Whether or not properly served or timely filed, plaintiff's affirmation is inadmissible, as parties may not submit affirmations pursuant to CPLR 2106.
After the defendants' motion was argued before the Court, counsel for the defendants attempted to review the disc of exhibits that plaintiff's counsel had handed her on the return date of the motion, only to discover that it was blank. Despite defense counsel contacting plaintiff's counsel regarding the blank disc, and plaintiff's counsel providing another copy of the disc, counsel for the defendants claimed that the second disc was blank as well.[FN1]
On May 3, 2017, in response to the defendants' order to show cause, plaintiff's counsel [*3]filed a cross motion seeking an extension of time to file opposition papers to the defendants' summary judgment motion, which had already been argued before the Court had previously been marked fully submitted. Despite the untimeliness of the cross-motion, the Court agreed to hear arguments on the defendants' order to show cause and the plaintiff's cross motion, as well as hearing further arguments on the defendants' initial motion for summary judgment on June 9, 2017 when all of the motions were marked fully submitted.
At the outset, the Court finds that the plaintiff has failed to comply with CPLR 2214(c), which clearly states that "[e]ach party shall furnish to the Court all papers served by that party" and that "[o]nly papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the Court for good cause shall otherwise direct." See also In re Banniettis, 97 AD3d 121 (2nd Dept. 2012).
Equally, if not more, egregious, is the fact that the March 9, 2017 affirmation of service, affirmed by the attorney for the plaintiff, is false in that it states that plaintiff's counsel "served the annexed affirmation in opposition and memorandum of law and exhibits by electronic mail and depositing a true copy of same enclosed by regular mail in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service" upon the attorneys for the defendants on March 1, 2017. However, by plaintiff's counsel's own admission to this Court during the oral argument of the motion on March 10, 2017, he never mailed copies of the exhibits to the attorneys for the defendants. Only papers served in compliance with CPLR 2214(c) can be considered and, to date, the plaintiff's exhibits to his opposition papers have not been served upon counsel for the defendants in any form whatsoever.
As neither plaintiff's affirmation nor the exhibits may be considered by the Court in opposition to the defendants' motion for summary judgment, the motion is granted and the action is hereby dismissed. As such, the remaining pending motions are denied.
This constitutes the Decision and Order of the Court.
Dated :August 1, 2017
Hon. Edgar G. Walker, J.S.C. Footnotes
Footnote 1:At the invitation of plaintiff's counsel, the Court was provided with the discs and likewise found them to be blank.
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