Wray-Davis v Kings County Hosp.
Annotate this CaseDecided on February 26, 2018
Supreme Court, Kings County
Albertha Wray-Davis, Plaintiff,
against
Kings County Hospital c/o HEALTH AND HOSPITALS CORPORATION, Defendants.
4426/16
Plaintiff Pro Se
Albertha Wray-Davis
Attorney for Defendant
Salvatore J. Russo
General Counsel
Of Counsel: Sheree L. Fitzgerald, Esq.
Attorney for New York City Health and Hospitals Corporation
Claims and Medical Litigation Department
55 Water Street, 26th Floor
New York, New York 10041
(212) 323-2250
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion by pro se plaintiff, Alberta Wray-Davis, filed on December 22, 2017 with the Kings County Clerk's Office (hereinafter KCCO) for an order to restore her case which was previously dismissed by order of this Court dated October 17, 2017. The motion was opposed by New York [*2]City Health and Hospital Corporation [FN1] .
Notice of Motion
Affidavit in Support
Affirmation in Opposition
Exhibits A-E
MOTION PAPERS
By notice of motion filed on December 22, 2017, pro se plaintiff Alberta Wray-Davis moves for an order to restore her case. Plaintiff's notice of motion contains only her affidavit. Defendant New York City Health and Hospital Corporation (hereinafter defendant or NYCHHC) opposition paper consists of an affirmation of counsel and five annexed exhibits labeled A through E. Exhibit A is this Court's prior Order dated October 17, 2017. Exhibit B is a copy of the plaintiff 's summons dated June 9, 2016. Exhibit C is a copy of the prior notice of motion filed on July 11, 2017. Exhibit D is a copy of the prior notice of cross motion dated August 7, 2017. Exhibit E is a copy of the plaintiff's instant notice of motion filed on December 22, 2017.
BACKGROUND
On June 15, 2016 plaintiff Alberta Wray-Davis (hereinafter plaintiff or Wray-Davis) commenced an action by filing a summons and complaint with the Kings County Clerk's office.[FN2] On July 12, 2017, plaintiff filed a notice of motion for an order granting a default judgment against the defendant for failure to appear at three preliminary conferences. NYHHC opposed the motion and filed a cross-motion to dismiss pursuant to CPLR 3211 (a) on August 8, 2017. This Court issued an order on October 17, 2018 denying the plaintiff's motion for default judgement and granting the defendant's motion dismissing the action pursuant to CPLR 3211 (a) due to the plaintiff's failure to establish that the Court had personal jurisdiction over the defendant.
In the instant action, plaintiff Wray-Davis moves to restore the previously dismissed action citing no law or authority. NYCHHC submitted an affirmation in opposition to the motion to restore pursuant to CPLR 2221 (d-f).
LAW AND APPLICATION
CPLR Rule 2214 sets forth the requirements for making a motion as follows:
(a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded.(c)Furnishing papers to the court. 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 [*3]possession of the court necessary to the consideration of the questions involved.Wray-Davis' notice of motion does not meet the requirements under CPLR 2214 (a). While the notice of motion is supported by an affidavit it does not provide the grounds for restoring the matter. "A court is generally limited to noticed issues that are the subject of the motion before it" (see Matter of Banks v Stanford, 2018 NY Slip Opinion 00829, 7 [2nd Dept 2018] citing DiDonato v Dyckman, 121 AD3d 638, 640 [2nd Dept 2014]). The plaintiff does not cite any law or provide any documentation in relation to the relief requested to meet the requirements of CPLR Rule 2214 (a).
Furthermore, plaintiff does not annex the order which dismissed her case. The instant motion only asks the Court "to reopen the case I was not given a fair trial". The Court previously dismissed the original summons and complaint for failure to obtain personal jurisdiction over the defendant. By the defendant's opposition paper the Court became aware of the previous order as the instant motion is unclear. The defendant correctly pointed out that the plaintiff is seeking a motion to renew or reargue pursuant to CPRL Rule 2221, wherein a copy of a prior Order of this Court would be necessary. Under CPLR 2214 (c), the plaintiff should have included the previous order that dismissed the matter she is seeking to restore (see Alizio v Perpignano, 225 AD2d 723, 724-725 [2nd Dept 1996]).
CONCLUSION
Plaintiff Wray-Davis' motion for an order to reopen or restore her case is denied.
The foregoing constitutes the decision and order of this Court.
Enter: February 26, 2018
J.S.C. Footnotes
Footnote 1:New York City Health and Hospital Corporation sued herein as Kings County Hospital Center submitted opposition papers to plaintiff's motion.
Footnote 2:This information was taken from the Court's Decision & Order dated October 17, 2017 and defendant's opposition papers.
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