Joseph A. Carfizzi v Elkins
Annotate this CaseDecided on February 11, 2016
Supreme Court, Ulster County
Joseph A. Carfizzi and Filomena Carfizzi, Plaintiffs,
against
Stuart Elkins and Richard Spoto, Individually and d/b/a San Marino's Pizza and R & S Pizza, and Stuart Elkins and Inez Elkins individually and d/b/a Sie Enterprises a/k/a San Marino's Pizzeria, Defendants.
05-1344
Timothy J. Ahearn, Esq.
Counsel for Plaintiff
22 Buena Vista Avenue
P.O. Box 44
Wallkill, New York 12589
11 Boniface Drive,
P.O. Box 236
Pine Bush, New York 12566
Matthew A.G. Petrosino, Esq.
Counsel for Defendant, movant
Richard Spoto
Catania, Mahon, Milligram & Rider, PLLC
One Corwin Court
P.O. Box 1479
Newburgh, New York 12550
Stuart Elkins
Defendant, pro se
357 West O'Reilly Street
Kingston, New York 12401
Lisa M. Fisher, J.
This matter involves a soured business relationship between Plaintiffs, Defendant Richard Spoto (hereinafter "Spoto"), and Defendant Stuart Elkins (hereinafter "Elkins"). In 1994, Plaintiffs leased a certain premises to Defendant Spoto and Defendant Elkins for the purposes of operating a pizzeria or delicatessen. Several lawsuits between the parties were filed and disposed of in the years 1997, 1998, and 1999. In 2002, Defendant Spoto assigned all his rights and interests in the lease agreement and the pizzeria to his business partner, Defendant Elkins.
In 2008, Plaintiffs commenced the instant action seeking tax increases and rent against both Defendants. Defendant Elkins filed for bankruptcy on or about December 21, 2009. It appears Plaintiffs' claims against Defendant Elkins were subsequently discontinued by Supreme Court (Melkonian, J.).
However, in 2013 Defendant Spoto moved Supreme Court (Melkonian, J.) to re-join Defendant Elkins as a party Defendant in this action because Defendant Elkins' bankruptcy did not list or discharge the claims advanced in this litigation. On February 5, 2013, Supreme Court (Melkonian, J.) signed such Order re-joining Defendant Elkins and required counsel for Defendant Spoto to serve Defendant Elkins. On August 28, 2013, Defendant Spoto served Defendant Elkins via CPLR § 308 (2).
According to Defendant Spoto, after serving Defendant Elkins several court conferences were held and Defendant Elkins failed to attend all of them. Allegedly Supreme Court (Melkonian, J.) ordered Plaintiff to serve a notice of default judgment upon Defendant Elkins. No such order has been attached to this motion.
Plaintiffs were unable to locate Defendant Elkins and additional time to effectuate such service was requested. The matter was transferred to this Court on or about March 20, 2015. A conference was held on April 14, 2015 wherein it was reported to the Court that Defendant Elkins had not been joined as party in this action and Plaintiff has been unable to locate him to serve him.
On July 1, 2015, the Court sent correspondence to the parties that, if Defendant Elkins has not been served yet per the last conference, Defendant Spoto shall be permitted to file a dispositive motion.
As such, Defendant Spoto now narrowly moves pursuant to CPLR R. 3211 (10), dismissing Plaintiffs' complaint on the grounds of failure to join a necessary party, and pursuant to CPLR R. 3212 for summary judgment for Plaintiffs' failure to join a necessary party. Plaintiffs oppose such application.
The Court's permission for Defendant Spoto to make a dispositive motion was intended to allow Defendant Spoto to move for summary judgment on the merits, as it had been represented to the Court at the conferences that there were meritorious grounds for summary judgment, not on such a narrow issue of joining a necessary party. Of which the first branch of Defendant Spoto's motion pursuant to CPLR R. 3211 is untimely and must be denied (see CPLR R. 3211 [e]), and the second branch relating to pursuant to CPLR R. 3212 on the grounds that Plaintiffs have failed to join a necessary party must also be denied as Defendant Elkins has been joined as a party—by and through Defendant Spoto's own personal service.
Thus, Plaintiffs have not failed to join a necessary party as Defendant Elkins is a party to this action. Defendant Spoto's motion confuses Defendant Elkin's nonappearance with non-joinder—which are two very different and important distinctions. Therefore, it cannot be held that Plaintiffs have failed to join a necessary party.
While Plaintiffs have failed to take a default on Defendant Elkin's nonappearance, Defendant Spoto cannot wield CPLR R. 3212 (c) as a sword against Plaintiffs' claims against them. First, Defendant Spoto does not have standing to make this argument for Defendant Elkins. Second, Plaintiffs' failure to move against Defendant Elkins does not operate as a shield to Defendant Spoto's liability. Third, CPLR R. 3212 (d) remedies this exact situation where only one defendant has answered and one or more defendants have failed to appear.
To the extent that Defendant Spoto claims Plaintiffs were directed to move for default on [*2]Defendant Elkins, there is no proof annexed to the moving papers of such and this Court does not possess such alleged order.[FN1] Such proof must be annexed to the moving papers which Defendant Spoto failed to do. (See Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["There is no authority compelling [the court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214[c], the court may refuse to consider improperly submitted papers."] [citations omitted]; Sheedy v Pataki, 236 AD2d 92, 97—98 [3d Dept 1997] [finding no abuse of discretion where the supreme court denied the plaintiff's present motion which referenced but did not include exhibits from a previous motion "[b]ecause a Supreme Court Justice does not retain the papers following his or her disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions . . . ."]; see also CPLR R. 2214 [c] ["Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved."].) Notwithstanding, the remedy would again not be dismissing the complaint against Defendant Spoto for Plaintiffs' failure in serving notice of default on Defendant Elkins.
Even though Defendant Spoto asks this Court for any further relief it may deem just and proper, the Court cannot and will not make arguments for either party since neither of them did.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendant Spoto's motion is DENIED, in its entirety, without prejudice to re-file a motion for summary judgment pursuant to CPLR R. 3212, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.
DATED: February 11, 2016E N T E R :
Catskill, New York
_______________________________
HON. LISA M. FISHER
SUPREME COURT JUSTICE
Papers Considered:
Notice of motion of Matthew A.G. Petrosino, Esq, dated September 15, 2015; attorney's affirmation in support, of Matthew A.G. Petrosino, Esq., with annexed exhibits, dated September 15, 2015;
Affirmation in opposition, of Timothy J. Ahearn, Esq., with annexed exhibits, dated November 30, 2015; and
Reply affirmation of Matthew A.G. Petrosino, Esq., dated December 11, 2015. Footnotes
Footnote 1: The Court also notes that an incomplete copy of the lease was submitted and, if either party move for summary judgment in the future, a complete copy of the lease will be necessary.
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