Potter v Music Hall of Williamsburg, LLC

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Potter v Music Hall of Williamsburg, LLC 2018 NY Slip Op 33422(U) December 18, 2018 Supreme Court, Kings County Docket Number: 503197/13 Judge: David B. Vaughan 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] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 RECEIVED NYSCEF: 01/03/2019 At an IAS State at the Kings, New N P R E S E HON. Part Term, New of 4 of the held York, Courthouse, 18th on the York, in Supreme and Court for at Civic the of County Center, Brooklyn, of December, day of the 2018. T: DAVID B. VAUGHAN, Justice. - . - . . . . - - - - - - --.. SHANNO.N -........................ ·· ··--· ·· -X POTTER, DECISION, Plaintiff, - against HALL MusIC - OF WILLIAMSBURG, AND ORDER, JUDGMENT LLC, Index No. Mot. Seq. 503197/13 No. 14-17 BOWERY THE PRESENTS LLC, LAZER," DECENT,"1 "MAJOR "DIPLO" THOMAS WESLEY d/b/a PENTZ, LAZER," DOE," and/or "MAJOR "JOHN "JANE "MAD as further in the described and EMBRACE - -- -- annexed DOE," complaint, INC.,2 USA, Defendants. - -- - -- The following - - - - -- - - - - -- - --- - - - - - - - - - - -X e-filed papers read herein: NYSCEF No. 244-259: 260-278. Notice of Motion/Cross Memoranda Motion, Supporting Affirmations, of Law, and Exhibits Annexed 279: 295-305: 329-346 Affirmations (Affidavits) in Opposition 306-308: 317-319: _ Reply Affirmations In In "Diplo" this Seq. and/or 2 "42 dated action Below," June to have The The 3 I 1-313; 314-316: 348-359: 365. 366 323-325. 326: 327-328: 320-322: 364. 367. 368-372 motion cross 309-310: been No. the defendant remairdng "Bacardi," and Decent" d/b/a "42 personal for has Bacardi Below," J.) (NYSCEF the injuries, motions following and disposition: "Major move defendants (Graham, for defendants Lazer," "Mad for damages consolidated 14, "Major 9, 2017 recover Lazer" appeared Ltd., were Thomas Pentz, Wesley d/b/a judgment; summary not and d/b/a in this "42 dismissed #140). 1 of 7 action. Below," from Bacardi this action U.S.A., by Inc., Decision/Order, d/b/a [*FILED: 2] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 In RECEIVED NYSCEF: 01/03/2019 Seq. No. LLC Presents the 15, move for defendants Music Hall judgment summary of LLC Williamsburg, all dismissing claims and and cross The Bowery claims against them; In for Seq. Potter Seq. (the inherent the Court's her; and (3) and/or vacating within five her extending and/or the JHO; to included erroneously 3 The bracketed 2018 and her from said CPLR 2004 and/or pursuant to CPLR 5015 (a) to seek the such of authority order in of preclusion language in JHO 2018, which [and/or (1), the the grounds 2005, extending and/or the alternative (4) pursuant to any event, Muriel language; in reviewing Hubsher, and, as such a certain dated upon such in the notice 2 2 of 7 order March review (6) of motion. to to made by 16, 2018, pursuantto the Court, order and/or CPLR in with 2018 16, 2004 or, comply of March CPLR and/or default; authority the to two thereof];3 time pursuant (5) the conditionally excusable inherent of and, orders her review Shannon and/or (1), (a) effect(s) of as in responding default seeking Court, appears on herein 5015 her not review; the 28, orders cross-moves Inc., suing CPLR to excusing all thereof; default incorrectly March to or, the and/or USA, and it; pursuant (1) pursuant thereof; time order 16, provisions Embrace Potters, vacating relieving her inherent wit, (a) excusing days an March preclusion (2) orders; (b) against claims Shannon for dated and/or the all Court, defendant answering plaintiff moves orders alternative, said the 17, ofthe authority vacating the No. remaining dismissing plaintiff), precluded (c) the 16, judgment summary In of No. 2005, 3104 (d), a referee and/or which order CPLR3104 [*FILED: 3] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 (d), RECEIVED NYSCEF: 01/03/2019 said modifying therein; and vacating the orders orders dated to amend her judgment motions additional arguments there the 2018 no longer of papers of extent exclude 30, extent to the opposition to to the above-requested April a iTullity, is granted order the granting Court's herein 2018 16, be rendered relief plaintiff upon (7) would if the March and June the an on 7, 2018 a preclusion being submitted preclusion in CPLR 2221 (a), the grounds that said order preclusion affidavit to from the the in effect; then order, response language to pursuant relief, lifting including conditional and the permitting aforesaid plaintiff (8) summary and making thereon.4 Background By after dated order, oral "If x thereofj, n will or the The has motion, 5 CPLR The the undisputed Order motions rendered plaintiff dated #205] interim, of the plaintiff's so as to be in motion argued, heard, Order Hubsher held, to to the original]). comply for 30 failed an order and decided to [i.e., within days an aff became with its in with comply conditional, initially absolute because terms.5 the adjourning together with aforementioned the plaintiff's moot. sought no review of the Preclusion 3104. 3 - Muriel or offering motion. x has 12/4/17." the this therein testifying order, in with [underlining preclusion failure, branch remaining been JHO Order), listed from a dispositive and comply discovery at 2 [NYSCEF judgment summary CC 16, 2018, plaintiff's Preclusion to be precluded to opp P.C., Order On April (the fails plaintiffj outstanding supp of [the provide the 2018 16, that: argument, (Preclusion March . 3 of 7 Order within the five-day limit of [*FILED: 4] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 By held, RECEIVED NYSCEF: 01/03/2019 after oral April dated order, "pursuant to Preclusion Order], for vacate, Order dated order, was precluded April when plaintiff order. The vacate judgment Martin Schneier of 3/16/18 from opposition said by at trial testifying to dispositive any the order, the [i.e., P.C., C.C., the plaintiff's #243}). Court (Knipel, order, denied J.) motion to the April By order, motions for failed to 3/16/18 3/16/18 order appealed the became The the the [the the operational of terms Accordingly, of .from. memorialized merely order. 3/16/18 order with comply order the never was in the of 3/16/18 preclusion mtn. plaintiff's] #361]). dated "for based order, 2018 dated to this this 2018, interpretation in motions 30, 25, July Knipel judgment 2018 operation by order 4/30/18 in the 1 [NYSCEF to Justice 30, order to abide the 3/16/18 provided directed denied." summary in SCEF 7, 2018, preclusion motions is precluded June The JHO. By JHO Order), that: holding at Plaintiff failed 1 [NY at "Plaintiff (Order prior having orders." 12/4/17 (lylemorialization Court's affidavit any motion[,] By this offering and Memorialization (the that: argument, or 2018 30, on order" August Court, light Judge of the noting referred of the extent March Knipel's (NYSCEF 16, Court 16, June of the instant x's preclusion 2018 7, 2018 preclusion order judgment summary as it relates order denying to the & subsequent x's motion #347). 20 18, Justice that: 4 4 of 7 Knipel returned the instant summary to [*FILED: 5] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 RECEIVED NYSCEF: 01/03/2019 . "The of 6/7/18 the and (NYSCEF order JHO 3/16/18 is no there of this Court order. need denied the This denial interpretation." for is clear and prima facie - appeal 3104 [CPLR] unambiguous #360). Discussion The a matter the of law plaintiff from out 12d Dept Dept has failed Preclusion and opposition to the because she then Ninety to to in only Corp. v case, a triable raise disclose 11 AD3d this plaintiff's Commodore Mfg. of fact. judgment from 48 1, 661 [2d in Lee that of this instant the without trial Not Dept [1st until judgment Dept motions, Realty, thereby Dept 2008]). is the plaintiff after motions 1084 the opposition, prevented filed (see Kontos v by the afñdavit precluded she 1216, 1084, ex-boyfriend's is also 2009]; AD3d AD3d In moving preventing 150 50 prevent the to LLC, Corp., her she Orders as in that the note Ravagnan in regard of issue v One Syllogos Koakos 2004]).6 v Barnett (134 plaintiff's testimony only but witness summary 482 [2d offering motions, address the 502 to judgment opposition in dispositive v 880 501, entitlement Memorialization Mahgoub Orders circumstmces to establish other AD3d 48 issue summary AD3d the failed facie CDJ 64 Inc., a prima 2017]; to "Ippocrates," defendants (see opposition Co., Realty Unlike case the affidavit any or any facie v Curtis, and offering a prima instant failed or Memorialization the Preclusion motions Callaghan 2008]; the trial at testifying their established that demonstrating making plaintiff and have summaryjudgment 12 19-1220 [2d by from defendants' her defendants moving and AD3d testimony, "any affidavit 908, 910 she would [2d Dept 2015]), be unable in opposition where to make to any dispositive (continued...) 5 5 of 7 out [*FILED: 6] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 RECEIVED NYSCEF: 01/03/2019 the Lastly, Preclusion Order made by made in (CPLR the court 3104 [d]). 3104 powers of general authority reason with of the her in and review of the reopen has to this referee disclosure requests discovery her deviate judgment the the only motions, statutory remedy 5015 throughout has is of become CPLR to The multiple That unable but 3104 the are means by which she can 6 6 of 7 make a prima on thereby plaintiff plaintiff, insufficient (d) outlined facie case. order is made" under its limited above. the usurp shown to comply by oppose to the motion by has to successfully is an Order failures (...continued) herein order expand and (d) 3I04. action. be the of of Preclusion (1) her to excuse this after 3104 review shall the (a) CPLR unfortunate under days CPLR under Issue, noncompliance, counsel's) from referees of five CPLR for al5plication "[t]he vacatur things, parameters review under other among within use orders post-Note action, - sought timely to The strict is pending not for, (1). (a) are declines disclosure summary motion" action defendants' (and/or to the Court granted 5015 disclosure plaintiff The motion plaintiff's CPLR to which defendants' Court the supervising (d), to denies pursuant a referee CPLR no Court prompt virtue the the [*FILED: 7] KINGS COUNTY CLERK 01/03/2019 10:14 AM INDEX NO. 503197/2013 NYSCEF DOC. NO. 375 RECEIVED NYSCEF: 01/03/2019 Conclusion based Accordingly, ORDERED Lazer" "Major No. 15, and The of of the the that and defendant in Seq. claims of are Seq. are each the Hall all prejudice and the Lazer"; of of in costs Seq. LLC Williamsburg, cross plaintiff's without defendants (2) judgment summary and of "Major Music 16, is motion and/or granted, with dismissed judgment "Diplo" No. it argument, defendants in (3) Inc.; the oral summary d/b/a Pentz, and USA, the 14, motion LLC; Embrace cross No. after and foregoing Wesley judgment Presents Bowery the Thomas summary defendants' claims motion and all or disbursements; it is further and ORDERED (1) (1) on Decent," "Mad ORDERED things, pursuant denied in its action and (2) "John that in Presents judgment on the file constitutes (1), continued "Jane the 17, to the is directed to counsel affidavit the and No. (a) and against the vacating it is further motion for Preclusion of decision, defendants I I :01 WV E3 A.1Nfl03 an Order plaintiff the service order, Hall serve electronically to said Music order, and for with and and the of Williamsburg, a copy each I ings judgment of 'E C- defendants remaining and Doe"; plaintiff's the other among other relief LLC and is is further it respective an Doe" Seq. counsel that LLC is severed 5015 and entirety; Bowery This the CPLR to ORDERED electronically that N of of this the co-defendants, and order, and to Clerk. County the decision, The Court. T E R, NVF6IE SONIM J. S. C. HON. DAVID J.S 7 of 7 B. C VAUGHA NANCY T. SUNSH Clerk