Sklifas v Juliet Supperclub

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Sklifas v Juliet Supperclub 2013 NY Slip Op 31105(U) May 21, 2013 Sup Ct, New York County Docket Number: 102400/11 Judge: Cynthia S. Kern 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: PART Justice INDEX NO. Index Number : 102400/201I SKLl FAS, ATHANASIOS MOTION DATE vs MOTION SEQ.NO. JULIET SUPPERCLUB Sequence Number : 002 VACATE The following papers, numbered 1 to , were read on tnis motion tOlfOr Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IN d d . INds). - Exhibits Replying Affidavits Upon the foregoin is decided in accordatxe with the anaacxed decision. Dated: \ 1.\, \, 7- , J.S.C. ..................................................................... CASE DISPOSED nDENIED CHECK AS APPROPRIATE: ........................... MOTION IS: ~y.1 GRANTED CHECK IF APPROPRIATE: ................................................ aSETTLE ORDER 1. CHECK ONE: 2. 3. 0DO NOT POST @ NON-FINAL DISPOSITION GRANTED IN PART OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] !* Plaintiff, -againstJULIET SUPPERCLUB, WEST 2lStSTREET PROPERTIES, LLC, JOHN BAKSHI, 539 JB ENTERPRISES, LTD., JOHN a d JANE DOES 1-10 (fictitious names) and ABC CORPORATIONS 1-10 (fictitious entities), Index No. 102400/11 DECISION/ORDER FIL Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion : Papers Numbered Notice of Motion and Affidavits Annexed.................................... . . .. Affidavits in Opposition............................................................. Replying Affidavits...................................................................... Exhibits...................................................................................... Plaintiff commenced the instant action against defendants alleging that they were negligent in causing plaintiff to be struck and assaulted while he was a patron in defendant Juliet Supperclub's nightclub. On or about January 22,2013, this court disposed of the case due to plaintiff's failure to appear at two Compliance Conferences scheduled by this court. Plaintiff now moves for an Order vacating the dismissal and restoring the Complaint in this action. For the reasons set forth below, plaintiffs motion is granted. The relevant facts are as follows. On December 29'20 10, plaintiff was a patron at the [* 3] premises known as the Juliet Supperclub located at 539 West 21 Street, New York, New York (the premises ). While at the premises, plaintiff was allegedly assaulted by an intoxicated patron and suffered permanent injuries. On or about February 25,20 11, plaintiff commenced the instant action with the filing of a Summons and Complaint. On March 29,201 1, West 2lStStreet appeared and answered and served a Demand for a Verified Bill of Particulars and Combined Demands for Discovery and Inspection. On or about June 2,20 1 1, plaintiff served defendants with an Amended Verified Complaint, On August 14,2012, a Compliance Conference was held in this action but plaintiff failed to appear. Defendants allege that on September 24,2012, a letter was sent to plaintiffs counsel ih advising him of his failure to comply wt discovery obligations and court orders but that plaintiff failed to respond. Another Compliance Conference was held on September 25,2012 and plaintiffs counsel appeared. However, plaintiff alleges in his motion papers that he did not appear on this date. According to court records, at this conference, the parties entered into a discovery schedule and another Compliance Conference was scheduled for January 22,2013. On January 22,2013, plaintiff failed to show up for the Compliance Conference. Thus, on that date, this court entered an Order dismissing plaintiff s complaint pursuant to Uniform Rules - Trial Courts 6 202.27 based on plaintiffs failure to appear for two scheduled conferences. Plaintiff now moves for an Order vacating the dismissal of the case and restoring the complaint in this action. A case that has been dismissed due to the plaintiff s failure to appear for two or more scheduled court conferences may be restored if the plaintiff establishes a reasonable excuse for the failure to attend the conference and a meritorious cause of action. Biton v. Turco, 88 A.D.3d 2 [* 4] 5 19 (1 Dept 20 11). In the instant case, plaintiff s motion to vacate the dismissal and restore the complaint is granted to the extent stated herein. As an initial matter, plaintiff has established a meritorious cause of action. Plaintiff has alleged that as a direct and proximate result of defendants negligence, plaintiff suffered personal injuries including, but not limited to, multiple facial traumas, a fractured upper incisor, mandibular fracture and nasal bone fracture. Plaintiff has alleged that such injuries occurred due to defendants negligence in failing to maintain the premises in a safe manner and failing to exercise reasonable care when serving alcohol to the patrons in the nightclub. Plaintiff also alleges in his second cause of action that defendants breached their nondelegable duties owed to plaintiff pursuant to New York General Obligations Law 8 11-101. However, it is unclear whether plaintiff has demonstrated a reasonable excuse for failing to appear at the two scheduled compliance conferences. Plaintiff fails to address his nonappearance at the August 2012 Compliance Conference and alleges that he failed to appear at the January 20 13 Compliance Conference due to lack of notice of the conference fiom the Court. However, this court has a record of plaintiffs counsel s appearance at the September 2012 Compliance Conference during which the parties agreed to the January 20 13 conference date. Thus, due to the fact there may have been some confusion as to when plaintiff appeared and what notice he had of the dates of the conferences, this court grants plaintiffs motion to restore this case to the calendar on the condition that plaintiff provide all outstanding discovery demanded by defendants within 30 days of the date of this order and that all parties, including plaintiff, appear for a Compliance Conference on July 30,2013 at 11:00 a.m. at 60 Centre Street, New York, New York in Room 432. If plaintiff does not provide the discovery within the time frame provided or 3 [* 5] appear at the Compliance Conference, the dismissal is not vacated. Accordingly, plaintiffs motion to vacate the dismissal and restore the Complaint in this action is granted on the conditions stated above. This constitutes the decision and order of the court. Enter: 3 u J.S.C. 4

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