Keller v Kruger
Annotate this CaseDecided on September 27, 2013
Supreme Court, Kings County
Robert W. Keller and MICHAEL R. HUDSON, Plaintiffs,
against
Douglas Kruger, YOLANDA SILVERA, TULLY CONSTRUCTION CO., INC., and LOCKWOOD, KESSLER & BARTLETT, INC., Defendants.
14274/10
Plaintiffs Robert W. Keller and Michael R. Hudson were represented by David F. Everett, Esq. Defendant Douglas Kruger was represented by Joseph P. Baratta, Esq. of Baratta, Baratta & Aidala LLP and by Kevin Thomas Conklin, Esq. and Elizabeth Hecht, Esq. of Mead, Hecht, Conklin & Gallagher. Defendant/third-party defendant Tully Construction Co., Inc. was represented by Todd A. Paradeis, Esq. of Fabiani Cohen & Hall, LLP. Defendant/third-party plaintiff Lockwood, Kessler & Bartlett, Inc. was represented by Joshua M. Jemal, Esq. of Lewis Brisbois Bisgaard & Smith, LLP.
Jack M. Battaglia, J.
On August 13, 2009, while high on crack cocaine, defendant Yolanda Silvera, drove a vehicle, owned by defendant Douglas Kruger, into a portion of Rockaway Boulevard that was under construction, striking plaintiff Robert W. Keller, who was working as a "flagman" for defendant Tully Construction Co. Inc., and striking plaintiff Michael R. Hudson, who was a driver/equipment operator employed by nonparty Durso Transportation Corp. Nonparty David Kruger, defendant Douglas Kruger's son, was a passenger in the vehicle operated by Yolanda Silvera. The roadway was owned by the State of New York, who entered into a contract with defendant Lockwood, Kessler & Bartlett, Inc. ("Lockwood") to serve as a consultant engineer, and entered into contact with defendant Tully Construction Co., Inc. ("Tully") to serve as general contractor for the roadwork.
In the Verified Complaint, Plaintiffs allege, among other things, that defendant Yolanda Silvera was negligent and reckless in her operation of the vehicle, and that she operated the vehicle with the permission of defendant Douglas Kruger. On or about August 10, 2010, defendants Douglas Kruger and Yolanda Silvera interposed a joint Answer to Verified Complaint and Cross-Claim, which did not address Plaintiffs' allegation that Silvera operated the vehicle [*2]with Douglas Kruger's permission. After "extensive disclosure" (as indicated in this Court's Decision and Order dated March 14, 2013), Plaintiffs filed the Note of Issue and Certificate of Readiness on January 27, 2012. Thereafter, the action has appeared in the Jury Coordinating Part at least nine times, and is currently scheduled for jury selection on October 11, 2013.
By Decision and Order dated March 14, 2013, this Court granted Plaintiffs summary judgment on the issue of liability as against Douglas Kruger on the ground that Douglas Kruger's Answer to Verified Complaint and Cross-Claim did not address Plaintiffs' allegation that the vehicle was operated by defendant Silvera with his permission, and therefore the allegation was deemed admitted pursuant to CPLR 3018(a). Since the allegation of permissive use was admitted, and this Court further determined that defendant Silvera was negligent in the operation of the vehicle, Plaintiffs were granted summary judgment on the issue of liability as against defendant Douglas Kruger pursuant to Vehicle and Traffic Law § 388, which imposes liability upon the owner of the vehicle based upon the negligence of the driver.
In his motions, defendant Douglas Kruger now seeks an order permitting him leave to amend his answer to deny that he gave Silvera permission to operate his vehicle (see CPLR 3025[b]); upon such amendment, seeking leave to renew his opposition to Plaintiffs' motion for summary judgment based upon his change in pleading (see CPLR 2221[e]); and, upon such renewal, denying Plaintiffs' motion for summary judgment as against him (see CPLR 3212).
In support of his motion, Kruger submits his own affidavit to the effect that based upon a a letter from the attorneys who had been representing him, i.e., the law firm of Hannum Feretic Prendergast & Merlino, LLC ( "prior counsel"), he has retained personal counsel; that prior counsel was appointed to represent him by his insurance carrier; that prior counsel never reviewed the Complaint with him; that he was "unaware" that Plaintiffs alleged that Yolanda Silvera operated his vehicle with his permission, consent, and knowledge; that prior counsel never showed him the Answer to the Verified Complaint and Cross-Claim interposed on his behalf; that because of his son David Kruger's drug problem, he hid the keys to his vehicles from his son; that he never gave either David Kruger or Yolanda Silvera consent to use either of his cars; that on the night before the accident, he did not expect his son to take either of his cars because his son had a flight scheduled for the next morning; that he never met, spoke to, or even heard of Yolanda Silvera; that he first learned about the accident from the police; that when he reported to the accident to his insurance broker, he told the broker that he did not give either David Kruger or Yolanda Silvera permission to use the vehicle; that he informed prior counsel that he did not give David Kruger or Yolanda Silvera permission to use the vehicle; that he only became aware of the summary judgment motion after it was decided; that he never had an opportunity to testify at a deposition, and was never given an opportunity to submit an affidavit in opposition to Plaintiffs' summary judgment motion.
The branch of defendant Douglas Kruger's motion seeking to amend his answer to deny permissive use is made after summary judgment has already been granted as against him on the issue of permissive use. Summary judgment is the procedural equivalent of a trial. (See Rivers v [*3]Birnbaum, 102 AD3d 26, 42 [2d Dept 2012]). "Once a court has granted or denied a summary judgment motion based on the facts adduced before it, the matter is res judicata; new life may not be breathed into it through permissive repleading, even upon a showing of merit." (Buckley & Company, Inc. v City of New York, 121 AD2d 933, 935 [1st Dept 1986]; see also Amaranth LLC v National Australia Bank Limited, 40 AD3d 279, 280 [1st Dept 2007]; Reznick v Tanen, 162 AD2d 594, 594 [2d Dept 1990].) "The time to demonstrate the merit of an action or defense challenged on a motion for summary judgment is before the motion is decided." (Buckley & Company, Inc. v City of New York, 121 AD2d at 935.) Indeed, it is has been held that the court is "without authority" to grant a motion to amend a pleading on an issue that has already been determined in a summary judgment motion. (See Reznick v Tanen, 162 AD2d at 594).
Accordingly, since the Court's determination as to liability based, in part, on the issue of permissive use is res judicata,and the Court is without authority to permit amendment of a pleading on that issue, defendant Douglas Kruger's motion to amend must be DENIED.
In any event, even assuming the cited authority does not now preclude Kruger's motion to amend, "[a]pplications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit." (Maldonado v Newport Gardens, Inc., 91 AD3d 731, 732 [2d Dept 2012].) "The decision of whether to grant leave to amend a pleading is generally left to the sound discretion of the trial court"; however, where "an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious". (See Velez v South Nine Realty Corp., 57 AD3d 889, 892 [2d Dept 2008].) "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated, whether a reasonable excuse for the delay was offered, and whether prejudice resulted therefrom." (Sampson v Contillo, 55 AD3d 591, 592 [2d Dept 2008].)
Douglas Kruger contends that there is no prejudice because "although the note of issue and statement of readiness with jury demand were filed some time ago, as a practical matter, discovery remains fulsome and ongoing", and that "this is not a situation where leave to amend is sought on the virtual eve of trial." However, Kruger fails to mention that the "ongoing" disclosure was the result of this Court's Decision and Order dated March 14, 2013 that determined, among other things, that defendant Tully Construction Co., Inc. failed to timely exchange the names and addresses of witnesses, and was not a result of any dilatory conduct on the part of Plaintiffs. Indeed, it is undisputed that the depositions are being conducted during the pendency of the instant motions. Since the case has already appeared in the Jury Coordinating Part numerous times, and is again scheduled for jury selection on October 11, 2013, this motion is made on the "eve of trial".
Douglas Kruger also contends that "it should be noted that a deliberate and perhaps strategic decision was made to waive the deposition of Mr. Kruger during the discovery phase of [*4]this action", and that "to the extent that any alleged surprise is asserted, it is respectfully submitted that such a contention is unwarranted in light of the decision to forego the deposition of this party witness". Douglas Kruger also points out that the issue of permissive use was not addressed during the deposition of David Kruger.
It is apparent, however, that in determining to forego taking Douglas Kruger's deposition during disclosure and not addressing the issue of permissive use at David Kruger's deposition, the parties relied upon Douglas Kruger's admission of permissive use. Contrary to Douglas Kruger's contentions, the deliberate steps taken by the parties during disclosure demonstrating their reliance upon Douglas Kruger's admission of permissive use demonstrates prejudice to them if this Court were to grant the motion to amend. Contrary to Kruger's suggestions, a party should not be expected to incur the expense of investigation of an issue that is not disputed in the pleadings. Here, it is clear that the proposed amendment, if granted, would necessitate further disclosure, including Douglas Kruger's deposition, as well as possibly further depositions of David Kruger and Yolanda Silvera with respect to the issue of permissive use, and would necessitate further delay in the resolution of this case.
It should be noted that Kruger's affidavit sufficiently demonstrates prima facie that the proposed amendment is not palpably insufficient or patently devoid of merit. However, assuming the truth of Douglas Kruger's affidavit, Kruger was aware of the facts upon which the proposed amendment is based as soon as he heard about the accident.
The only excuse proffered by defendant Kruger for the delay in seeking to amend his pleading is his prior counsel's failure to properly represent his interests. While prior counsel's dual representation of Yolanda Silvera and Douglas Kruger may have violated ethical rules (see Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.7; see also generally Vinokur v Raghanandan, 27 Misc 3d 1239[A], 2010 Slip Op 51108 [Sup Ct, Kings County 2010]) and even assuming that the failure of prior counsel to interpose an answer denying permissive use, or to seek amendment of Kruger's pleadings at any time prior to the determination of Plaintiffs' summary judgment motion, may have been negligent conduct, Kruger does not cite to any authority that his own attorney's misconduct or negligence constitutes a reasonable excuse for the delay in seeking an amendment to a pleading after summary judgment has already been determined, or on the eve of trial. Moreover, the Court will not speculate as to prior counsel's motivations for actions taken in representation of this Defendant.
As such, based upon the inexcusable delay as well as prejudice to the opposing parties, especially Plaintiffs, Kruger's motion to amend must be denied. (See e.g. Velez v South Nine Realty Corp., 57 AD3d 889, 892 [2d Dept 2008] [proposed amendment was based upon factual circumstances known at the time of the commencement of the action]; Keating v Nanuet Board of Education, 44 AD3d 623, 624 [2d Dept 2007] [information upon which the affirmative defense was based was known to defendant for more than five years]; Comsewogue Union Free School District v Allied-Trent Roofing Systems, Inc., 15 AD3d 523, 524-525 [2d Dept 2005]; Travelers Property Casualty v Powell, 289 AD2d 564,565 [2d Dept 2001][denial of defendant's [*5]motion for leave to amend answer to include affirmative defense of lack of permissive use on the eve of trial].)
Accordingly, the branch of defendant Kruger's motion for leave to amend his answer is DENIED.
Since Kruger's motion for leave to amend his answer is denied, there are no new facts that would form the predicate for Kruger's motion for leave to renew his opposition to Plaintiffs' summary judgment motion. (See CPLR 2221[e] ["shall be based upon new facts not offered on the prior motion]; Renna v Gullo, 19 AD3d 472, 473 [2d Dept 2005].)
Accordingly, defendant Kruger's motion for leave to renew is DENIED.
The branch of defendant/third-party plaintiff Lockwood, Kessler & Bartlett's motion seeking an order, pursuant to CPLR 3126, precluding Douglas Kruger from offering evidence at trial regarding the alleged non-permissive use of his vehicle is DENIED. Movant fails to attach any disclosure orders allegedly violated by Douglas Kruger that would form a predicate for a motion pursuant to CPLR 3126. Moreover, it is undisputed that Douglas Kruger was never noticed for a deposition. Of course, all parties may offer appropriate objection to evidence offered at trial, including those based on relevance.
Accordingly, all the motions are denied in their entirety.
September 27, 2013____________________
Jack M. Battaglia
Justice, Supreme Court
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