Erez v Partnership 92 W., L.P.

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Erez v Partnership 92 W., L.P. 2013 NY Slip Op 31898(U) August 12, 2013 Sup Ct, NY County Docket Number: 153754/13 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. [*FILED: NEW YORK COUNTY CLERK 08/13/2013 1] INDEX NO. 153754/2013 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/13/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY '" ..... PART _ __ PRESENT: ;J~'~~ 9~ ?;2 iAJ~ ~.d INDEX NO. I S~ 75'1 - 13 MonON DATE _ _ __ QQJ MOTION SEQ. NO. The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _-:--_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). _ _ _ __ Upon the foregoing papers, it is ordered that this motion is oded in accordance \s dec 1 w with the an n exed decision. U ~ en :::l -, o le w 0::: 0::: w w u.. 0::: ¢ ¢ >- ...J~ ...J Z :::l 0 u.. en I- « u w W ~ 0::: (!) W Z 0::: - en ~ - 0 en « u ...J ...J - W ::I: I- W Z o ~ o ~ 0 u.. 0::: 0 u.. ,.-,.-.___-----'~'___'O)(~_ _, - J.S.C. CYNTHIA s. KE~N 1. CHECK ONE: ..................................................................... D 2. CHECK AS APPROPRIATE: ........................... MOTION IS: D GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 ~ NO~M. DISPOSITION CASE DISPOSED D DENIED SETILE ORDER DDONOTPOST o GRANTED IN PART D OTHER D SUBMIT ORDER D FIDUCIARY APPOINTMENT DREFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 -------------------------------------------------------------------------x DINA EREZ and UDI EREZ, Plaintiffs, -against- . i Index No. 153754113 DECISION/ORDER PARTNERSHIP 92 WEST, L.P., BLDG MANAGEMENT CO., INC., 53 WEST 72 nd STREET CAFE LLC, individually and d/b/a THE DAKOTA BAR and "THE DAKOTA BAR," Defendants. -------------------------------------------------------------------------x HON. CYNTHIA S. KERN, J.S.c. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: I Papers Numbered ! Notice of Motion and Affidavits Annexed...... ........ ...................... Answering Affidavits........... .......................... ................................. Replying Affidavits............................................................. ......... Exhibits...................................................................................... 1 2 3 4 Plaintiffs Dina and Udi Erez commenced the instant action agains~ defendants Partnership 92 West, L.P. ("Partnership"), BLDG Management Co, Inc. ("BLDG"), 5'3 West 72 nd Street Cafe LLC, individually and d/b/a The Dakota Bar and The Dakota Bar ("Dakota") to recover for injuries allegedly arising from a trip and fall on the sidewalk in front of defendants' premises. Defendants now move for an Order pursuant to CPLR § 3024 compelling plaintiffs to provide a 1 more definite statement on the ground that the allegations and the causes of action in the I complaint are vague and ambiguous such that defendants cannot reasonably be required to frame a response thereto. For the reasons set forth below, defendants' motion is denied. [* 3] The relevant facts are as follows. On or about April 25, 2013, pl~intiffs commenced the :1 instant action with the filing of a summons and complaint. As a first cause of action, the complaint alleges, inter alia, "[t]hat on the 13 th day of August, 2012, at approximately 9:00 p.m., while the plaintiff was lawfully traversing on the sidewalk on Columbus Avenue in front of or adjacent to the [defendants'] premises, she was caused to trip and fall, thereby causing her to , sustain severe injuries .... " The complaint further alleges "[t]hat the defendants were at all ~ecure times ... under a duty to keep the aforesaid sidewalk, in a safe, proper and manner, in good repair and free from obstruction and defect" and that said defendants fail~d to do so causing 1 plaintiff to sustain "severe and serious injuries" requiring her "to seek and maintain medical care and attention" and that plaintiff "will be compelled to do so in the future.:" The complaint alleges that as a result of defendants' failure to repair and/or secure the sidewalk 'at issue, the "plaintiff, , Dina Erez, has been damaged in" an unspecified sum. As a second cause of action on behalf of , plaintiffUdi Erez, the complaint alleges, inter alia, that Mr. Erez "has b~en deprived of the comfort, society and companionship of the plaintiff, Dina Erez and ... willjbe so deprived in the future" and that Mr. Erez "has been caused to incur medical expenses on;behalf of the plaintiff, Dina Erez, and ... will be so compelled to do so in the future." Based on the above allegations, defendants now move for an Order pursuant to CPLR § " 3024 compelling a more definite statement on the ground that the allegat~ons and the causes of action in the complaint are vague and ambiguous such that defendants cannot reasonably be .: required to frame a response thereto. In response to the motion and in addition to their opposition, plaintiffs filed and served an amended complaint which changed Paragraph 39 of the complaint to read that plaintiff tripped and fell "on a broken, raised andl?r defective sidewalk." 2 [* 4] Pursuant to CPLR § 3024(a), "[i]f a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a response he may move for a more definite statement." On a 1 motion by defendant to require the complaint to be made definite and certain, the question is whether one or more of the allegations is so indefinite or uncertain that its precise meaning or application is not apparent. See Role v. McLaughlin, 195 A.D. 413 (151 Dept 1921)(emphasis I added). In the instant action, defendants' motion for an Order pursuant to CPLR § 3024 compelling plaintiffs to provide a more definite statement is denied as defendants have not established that any of the allegations in the complaint are so indefinite or uncertain that their precise meaning or application is not apparent. Defendants assert that the complaint is vague and , I ambiguous on the grounds that (a) it is short; (b) the first cause of action contains no delineation , or heading; (c) it is not clear which plaintiff was allegedly injured in the trip and fall; (d) there is no indication of the type of injuries that plaintiff sustained; (e) there is n~ indication as to which I I allegations apply to which defendants; and (f) the allegations made in the' second cause of action are asserted "in conclusory form." However, such assertions are insufficient to establish that the complaint is so vague that defendants cannot form a response thereto. As an initial matter, I I defendants have not established that a complaint must be of a certain length or contain any delineations or headings in order to be considered sufficient. Additionally, it is perfectly clear from both the original complaint and the amended complaint that it was Dina Erez who tripped I and fell as the first cause of action states that "she" was caused to trip and fall and Paragraph 43 states that due to such trip and fall, "plaintiff, Dina Erez, has been damaged." To the extent , defendants seek information such as the types of injuries Ms. Erez sustained, which allegations I 3 [* 5] apply to which defendants and any further infonnation regarding Mr. EreZ's cause of action for loss of companionship and society, defendants' "remedy is to seek ampli~cation of the claim[s] through a bill of particulars or discovery." Dong Wook Park, PNP Grpup, Inc. V Michael Parke ; Dori Group, Inc., 12 Misc.3d 1182 (Sup. Ct. Nassau Cty. 2006); see also' Siegel, New York Civil Practice § 230. Accordingly, defendants' motion for an Order pursuant to CPLR § 3024 compelling plaintiffs to provide a more definite statement is denied. The amended c9mplaint attached to plaintiffs' opposition papers is deemed served nunc pro tunc. This constitutes the decision and order of the court. Enter: Dated: ~~ --------~--~,~~---------- J.S.C. CYNTHIA s. KERN J.S.C. 4

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