Kayantas v Restaurant Depot, LLC

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Kayantas v Restaurant Depot, LLC 2016 NY Slip Op 33075(U) February 22, 2016 Supreme Court, Nassau County Docket Number: 603995/15 Judge: Antonio I. Brandveen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NASSAU COUNTY CLERK 02/26/2016 02:33 PM NYSCEF DOC. NO. 31 -~ INDEX NO. 603995/2015 RECEIVED NYSCEF: 02/26/2016 I' ORIGINAL I I,, SHORT FORM ORDER SUPREMECOURT - STATEOFNEWYORK Present: ANTONIO I. BRANDVEEN J. S. C. TRIAL I IAS PART 35 NASSAU COUNTY KOSTAS KAYANTAS, Plaintiff, Index No. 603995/15 - against Motion Sequence No. 001, 002 RESTAURANT DEPOT, LLC, Defendant. The following papers having been read on this motion: Notice of Motion, Affidavits, & Exhibits . . . . . . . . . . . . . . . . . 1 2 Answering Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. 4 Replying Affidavits ..................................... ~5_ _ Briefs: Plaintiff's I Petitioner's ......................... _ _ _ __ Defendant's I Respondent's ..................... _ _ _ __ The plaintiff moves (motion sequence 001) pursuant to CPLR 3403(a)(4) for an order granting the plaintiff a special preference. The plaintiff submits his New York driver's license, Medicare card and health care card showing the plaintiff, born in 1934, attained the age of 82. The plaintiff asserts he falls squarely within the statute which is to expedite the final disposition of the plaintiff's can who has exceeded the age of70 years. The defendant opposes the defense motion. The defense asserts the plaintiff failed to abide by the CPLR 3403(b) requirement that a note of issue must accompany the plaintiff's motion upon service. The defense points out the plaintiff filed and served the instant motion for special preference without the required note of issue. The defense avers this [* 2] motion is premature because the plaintiff failed to respond to any outstanding discovery matters. In reply to the defendant's opposition, the plaintiff requests the Court grant the motion for preference and an expedited discovery briefing schedule based on the age, health and extenuating circumstances faced by the plaintiffs family, including financial hardship. The defense points to the plaintiffs affidavit dated February 8, 2016. The plaintiff states he was required to undergo emergency brain surgery due to a blood clot since tripping at the defendant's premises on February 7, 2016. The plaintiffs attorney asserts the plaintiffs wife stopped working in July 2015, to care for the plaintiff due to his weakness from the injuries and an overall decline in the plaintiffs health. The plaintiffs attorney also !~ concedes a note of issue has not yet been filed, but requests the Court exercise its discretion, in the interests of justice and accelerate discovery and trial. The defendant cross moves (motion sequence 002) pursuant to CPLR 3126 and 3124 for an order dismissing the complaint for the plaintiffs failure to comply with the defendant's notices duly served, or alternatively, for an order precluding the plaintiff from offering evidence at the trial of this action. The defense also requests, in the alternative, an order compelling the production of all outstanding discovery. The defense asserts the items duly demanded by the defendant remain outstanding. The plaintiff opposes the plaintiffs cross motion. The plaintiffs attorney provides an affirmation dated December 3, 2015, that the plaintiff fully complied with all information and documents requested in the defendant's discovery demands. The plaintiffs attorney states the cross motion should be denied as moot. The plaintiff submits a verified bill of Page 2 of 4 [* 3] .• particulars, authorizations to obtain medical records and responses to the defense demands for discovery in the opposition papers as Exhibit B. ·'i CPLR 2001 provides: !t At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may . permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid. CPLR 2004 provides: "[T]he court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." The Court determines the plaintiff, under these circumstances and in the interests of justice, satisfies the CPLR 3403(a)(4) burden for an order granting the plaintiff a special preference. In opposition, the defendant does not show any substantial prejudice in granting a special preference (see generally Grskovic v Holmes, 111 A.D.3d 234, 972 N.Y.S.2d 650 . [2013]). " The Court determines the defendant shows the plaintiff defaulted in complying with defense discovery demands. However, the defendant does not demonstrate the plaintiff willfully failed to disclose information. Moreover, the defendant does not provide a general pattern of delay by the plaintiff, or substantial prejudice to the defendant. In opposition, the plaintiff submits responses to the defendant's discovery notices and a demand for a verified bill of particulars. ORDERED that the plaintiffs motion (motion sequence 001) is GRANTED Page 3 of 4 [* 4] ) ' pursuant to CPLR 3403(a)(4) for an order granting the plaintiff a special preference, and it is also, ORDERED that the plaintiff is GRANTED leave to file and serve in accord with CPLR 3403(b) nunc pro tune, and it is also, ORDERED that the defendant's cross motion (motion sequence 002) is DENIED pursuant to CPLR 3126 and 3124 for an order dismissing the complaint for the plaintiffs failure to comply with the defendant's notices duly served, or alternatively, for an order precluding the plaintiff from offering evidence at the trial of this action, and it is further, ORDERED that all parties are reminded of their continuing obligations to provide discovery as required by law and court rules. So ordered. Dated: February 22, 2016 1 I ENTER: NON FINAL DISPOSITION FEB 2 6 2016 NASsr,u COU~ITY COUNTY CLERK'S OFFICE Page 4 of 4

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