Pappas v Schatz

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Pappas v Schatz 2013 NY Slip Op 32736(U) October 23, 2013 Sup Ct, New York County Docket Number: 650157/13 Judge: Melvin L. Schweitzer 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. [*FILED: NEW YORK COUNTY CLERK 10/29/2013 1] INDEX NO. 650157/2013 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/29/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART £/S INDEX NO. PRESENT: '5tslt:"] Justice //13 ¢ MOTION DATE _ _ __ ¢V ¢ MOTION SEQ. NO. <J0"7 The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ __ I No(s). - - - - I No(s). - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits 1~~ ~~ Upon the fo199olng papeis, HIs ordered th ¢;;;::;:, U;;)~Nfet>-~~A~ ~- U ~~~~~~ ~ 20~ C)~lf'l:t31£- w (.J j:: ::::> "' ..., ~ ~ ~on!JJ.,_ ~ c ,~~ZD~ w a: a: w u. w a: >..:.:.. ..J ~ ..J z "fji- S'~~ bEN1t5b · ::::> 0 u.. <( I- "' w (.J w a: (!) w z 3; a: - "' w ~ 0 "' <( (.J ..J 0 u.. j:: a: ..J 1\ fl z 1~ 0 0,...., ¢ r \. . \......... 1';"\c/..../ \ I 1- - I GJ 0 0 :::E u.. Dated: c. +- aac-rU::k_a&~ o~~or~cc.... -+<ro~, c.. ~ l S ! <. ~ J v. l ~ J \U r t (' I 1., /u: ~ 0 ~ ;:z:~, -W /3 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ f\N\ ~t (a 0 t~ ~ < ·_ ~ '(;;?.."'f"C:~~~-*"'1. . . c-.- 0 CRA~A NTEIDSPOSEDD /ENIED ~RANTE[ CB"bENIE 0 SETILE ORDER 0 SUBMIT ORDER ODO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 45 ------------------------------------------------------------------------x STEVE PAPP AS, Plaintiff, Index No. 650157113 DECISION AND ORDER -againstLARRY H. SCHATZ and GRUBMAN, INDURSKY, SHIRE & MEISELAS, P.C., Motion Sequence No. 001 Defendants. ------------------------------------------------------------------------x MELVIN L. SCHWEITZER, J.: In this commercial action, plaintiff Steve Pappas (Pappas) moves, pursuant to CPLR 3012 (d), for a 30-day extension of time to file and serve a complaint. Defendants Larry H. Schatz and Grubman, Indursky, Shire & Meiselas, P.C. cross-move to dismiss, pursuant to CPLR 3012 (b), and for sanctions against plaintiff. Discussion Plaintiff commenced this action by filing, through his attorney, Susan L. Meekins, Esq. (Meekins), a summons with notice on January 17, 2013, and an amended summons on February 7, 2013. On May 23,,2013, defendants, through their attorney Eric Weinstein, Esq. (Weinstein), served a demand for a complaint. Subsequently, on May 31, 2013, Weinstein sent a letter to Meekins, stating that the amended summons with notice sets forth causes of action that have already been litigated and are without merit. The letter included a reminder that the maintenance of a frivolous action may lead to sanctions. [* 3] On June 7, 2013, Meekins filed a consent to change attorney for plaintiff, in which Simas C. Dimas, Esq. (Dimas) was designated as plaintiffs new attorney. On June 10, 2013, Dimas received a letter from Gerard E. Harper, Esq. (Harper), who is a member of Paul, Weiss, Rifkind, Wharton & Garrison, LLP, co-counsel for the defendants, in which Harper expressed his opinion that the matter brought by Pappas is frivolous. After . reviewing the matter on that same day, Dimas determined that he could not adequately represent plaintiff, and now makes this motion, seeking an extension of time for plaintiff to hire new counsel and serve and file a complaint. According to Dimas, plaintiff has a sincere belief that he has a good cause of action and should be afforded the opportunity to find a law firm to litigate this matter. Dimas has set forth the sequence of events pertinent to this litigation in his affirmation in support of plaintiffs motion. In opposition, defendants argue that any motion brought pursuant to CPLR 3012 (d) that does not include an affidavit of merit, cannot be granted. They further argue for dismissal on the ground that this matter is merely duplicative of the claims and issues set forth in Pappas v Tzolis, 20 NY3d 228 (2012)], in which the Court of Appeals dismissed plaintiffs entire case. Pursuant to CPLR 3012 (d), "[ u]pan application of.a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." It is squarely within the discretion of the court to require an affidavit of merit (Mujalli v Ford Motor Co., 105 AD2d 642 [1st Dept 1984 ]). On this issue, the court in Mujalli quotes the language of the Senate sponsor of the bill for CPLR 3012 (d): 2 [* 4] '"Although the language of [the new CPLR] 3012 (d) is substantially identical to that of 5015 (a) [motion for relief from a judgment or order], there is no intent to extend the full judicial gloss on 5015 (a) to the new provi~ion. Specifically, while the merits of the applicant's case may sometimes be an appropriate factor for consideration, routine insistence on a showing of merits in cases of short delay would be an unwarranted burden.'" (Mujalli, 105 AD2d at 644 [1st Dept 1984], quoting the Memorandum of Sen. Stafford, 1983 NYS Legis, Ann at 144 [the bill's Senate sponsor]). Here, there was only a 17-day period between the service of the demand and the filing of the motion for an extension of time to file a complaint. This is within the 20-day period set forth under the statute for service of the complaint after the demand (see CPLR 3012 [b ]). In his affirmation in support ofthe motion, Pappas's attorney offers a reason for plaintiffs request for a short delay; he explains the sequential substitution of plaintiffs counsel and plaintiffs resulting need for time to hire new counsel to file and serve the complaint. Accordingly, Pappas has satisfied the required conditions under CPLR 3012 (d) and need not offer an affidavit of merit. The court, therefore, grants his motion for an extension of time. As it is not necessary for the court to review the merits of this matter on this motion, the court denies the defendants' motions to dismiss and for sanctions. Accordingly, it is ORDERED that plaintiff Steven Pappas's motion pursuant to 3012 (d) for an extension of _time to file a complaint is granted to the extent that plaintiff Steve Pappas must serve and file a complaint within twenty (20) days of service of this order with notice of entry; and it is further ORDERED that defendants Larry H. Schatz and Grubman, Indursky, Shire & Meiselas, PC's cross-motion to dismiss and for sanctions is denied. 3 [* 5] \ Dated: October J..3r2013 ENTER: MELVIN l. SCHWEITZER 4

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