Wessler v Scattone

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Wessler v Scattone 2018 NY Slip Op 31477(U) January 11, 2018 Supreme Court, New York County Docket Number: 160605/2016 Judge: Gerald Lebovits 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. INDEX NO. 160605/2016 [*FILED: NEW YORK COUNTY CLERK 02/07/2018 02:53 P 1] NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/07/2018 NEW YORK ST ATE SUPREME COURT NEW YORK COUNTY: PART 7 RICHARD WESSLER and SHEENA HANKIN WESSLER, Plaintiffs, Index No.: 160605/2016 DECISION/ORDER Motion Seq. No. 001 -againstFRANSCESCO SCATTONE, SILVER LININGS; CONSTRUCTION CORP. and SILVER LININGS INTERIORS, INC., Defendants. Recitation, as required by CPLR 2219 (a), of the p;ipers considered in reviewing defendant Franscesco Scattone'B motion to dismiss and plaintiffs' cross-motion for either (1) an order granting plaintiffs leave to file and serve the amen~ed summons with notice nunc pro tune under CPLR 305 (c); or (2) an order granting plaintiffs leave to amend the summons with notice initially filed in this action to change the notice of damages date for just cause under CPLR 305 (c), and, extend the time to serve defendants under'CPLR 306-b Papers NYSCEF Document Numbers Defendant Franscesco Scattone's Notice ofMotion ................................................................ 18-29 Plaintiffs' Notice of Cross-Motion ........................ :.................................................................. 31-46 Defendant Franscesco Scattone's Opposition to C~oss-Motion .............................................. 48-51 Plaintiffs' Reply ....................................................................................................................... 52-53 Greenblatt & Agulnick. P.C., New York (Scott E. 'Agulnick of counsel), for plaintiffs. Wade Clark Mulcahy LLP, New York (Dana Purcaro of counsel), for defendant Franscesco Scattone. · Harris. King. Fodiera & Correia (Thomas J. King of counsel) for defendant Silver Linings Interiors, Inc. Gerald Lebovits, J. Defendant Franscesco Scattone moves under CPLR 3012 (b), CPLR 306-b, and CPLR 214 to dismiss the complaint and all cross-claims .. Scattone moves to dismiss the complaint for lack of personal jurisdiction and expiration of the ~tatute oflimitations. Scattone admits in his motion to dismiss that he inadvertently omitted from his answer a personal-jurisdiction defense. Plaintiffs cross-move for either (I) an ord~~ granting plaintiffs leave to file and serve the amended summons with notice nunc pro tune under CPLR 305 (c); or, in the alternative, (2) an order granting plaintiffs leave to amend the2 of 5with notice initially filed in this action to summ'~:ms INDEX NO. 160605/2016 [*FILED: NEW YORK COUNTY CLERK 02/07/2018 02:53 PM 2] NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/07/2018 change the notice of damages date for just cause under CPLR 305 (c), and, extend the time to serve defendants under CPLR 306-b. Scattone opposes plaintiffs' cross-motion. I. Background This is an alleged property-damage case brought by plaintiffs Richard Wessler and Sheena Hankin Wessler against defendants Scattone, Silver Linings Construction Corp., and Silver Linings Interior, Inc. Plaintiffs filed a summons with notice in this court on December 16, 2016, for injury to their property located at 18 East 93 Street, New York, New York by defendants' construction to the adjacent property located at 20 East 93 Street, New York, New York ("20 East 93"). Plaintiffs allege in their summons with notice that defendants' negligent construction, nuisance, and trespass at 20 East 93rd damaged their property on or around December 15, 2013, and continue to date. On December 19, 2016, plaintiffs filed a new summons with notice alleging they noticed damages on December 16, 2013, not December 15, 2013. After plaintiffs received Scattone's demand for a complaint, plaintiffs filed and served the complaint on all defendants. Scattone filed an answer to the complaint on March 28, 2017, raising defenses and cross-claims for contribution and indemnifications from plaintiffs. Scattone's motion to dismiss the complaint and all cross-claims is denied. Plaintiffs' cross-motion is granted and plaintiffs' amended summons with notice is deemed filed and served nunc pro tune under CPLR 305 (c). II. Scattone's Failure to Raise Personal-Jurisdiction Defense in his Answer Scattone's motion to dismiss for lack of personal jurisdiction is denied. Scattone failed to raise a personal-jurisdiction defense in his answer; therefore, he waived the defense: "A jurisdictional defense not asserted in the first responsive pleading, whether answer or pre-answer dismissal motion pursuant to CPLR 3211, is waived." (CPLR 3211 [e]; Adresso v Shemtob, 70 NY2d 689, 690 [1987].) Scattone may not, 77 days after answering the complaint, raise this defense in a motion to dismiss with a verified answer. Scattone's argument that a clerical error caused this mishap does not cure the waiver of this defense. III. Scattone's Statute of Limitations Arguments Scattone argues that plaintiffs failed to commence this property-damage action within the three-year limitation period under CPLR 214 (4). CPLR 214 (4) provides that "an action to recover damages for injury to property must be commenced within three years of the date of the injury. Scattone argues that plaintiffs first noticed damage to their property on February 8, 2013, based on an engineering report plaintiffs produced. Scattone contends that this action is therefore I 0 months beyond the three-year limitations period. 2 3 of 5 INDEX NO. 160605/2016 [*FILED: NEW YORK COUNTY CLERK 02/07/2018 02:53 P 3] NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/07/2018 Plaintiffs refute this argument, arguing that,:the engineering report found no evidence of structural damage on February 8, 2013. The engine'er's inspection noted waterproofing problems that "may" have been attributable to the demolition and construction on the neighbor's property. Plaintiffs argue that its causes of action for neglige'hce, nuisance, and trespass accrued from December 16, 2013, and continue to date. At this time, Scattone has not met his burden to dismiss this case. The movant has the burden to demonstrate that the statute oflimitations has expired: "To dismiss a 'cause of action pursuant to 3211 (a) (5), on the ground that it is bafred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie.evidence that the time in which to sue has expired" (Hebrew Institute for Deaf and Exception''ai Children v Kahana. 57 AD3d 734 [2d Dept 2008].) The court cannot determine whether plaintfffs' time to sue has expired. The facts about plaintiffs' damage and the continuing nature of the'!damages are in dispute. Plaintiffs' cross-motion is granted. Plaintiffs' amended summons with notice (NYSCEF document number 2) is deemed filed and served n~nc pro tune under CPLR 305 (c). Under CPLR 305 (c): ' "a court, at any time, in its discretion and upon such terms as it deems just, may allow any summon~ to be amended, if a substantial right of a party against ~horn the summons issued is not prejudiced (CPLR 305 (c).)" Here, Scattone fails to establish that a substkntial right would be prejudiced by allowing plaintiffs leave to file and serve the amended summons with notice. Plaintiffs filed and served their corrected summons with notice three days aft~r filing their original summons. The corrected summons contained no changes aside from the typbgraphical error contained in the body of the notice itself. Scattone was served with the corrected summons with notice within the 120-day period and participated in the action accordingly. A substantial right is not prejudiced by allowing plaintiffs' leave to file and serve the amended notice which contains the corrected date already served on Scattone. '' Accordingly, it is hereby ORDERED that defendants Franscesco Scattone's motion to dismiss the complaint is denied; and it is further ORDERED that plaintiffs' cross-motion is granted and plaintiffs' amended summons with notice (NYSCEF document number 2) is deen'!ed filed and served nunc pro tune under CPLR 305 (c); and it is further ORDERED that plaintiff serve a copy of this decision and order with notice of entry on all parties; and it is further · 3 4 of 5 INDEX NO. 160605/2016 [*FILED: NEW YORK COUNTY CLERK 02/07/2018 02:53 P 4] NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 02/07/2018 ORDERED that the parties appear for a conference on March 28, 2018, at I 0:00 a.m., in Part 7, room 345, at 60 Centre Street. Dated: January 11, 2018 H©N ~ . GERALD LEBOVITS J.s.c. 4 .,: 5 of 5

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