Toscano v International Diversified Servs., LLC

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Toscano v International Diversified Servs., LLC 2019 NY Slip Op 34242(U) November 19, 2019 Supreme Court, Nassau County Docket Number: 614099/17 Judge: Denise L. Sher 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 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 0 RECEIVED NYSCEF: 11/20/2019 · ENTERED IN COMPUTER SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK CF PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 32 NASSAU COUNTY FREDERICK T?SCANO, Plaintiff, - against - Index No.: 614099/17 Motion Seq. No.: 02 Motion Date: 09/10/19 XXX INTERNATIONAL DIVERSIFIED SERVICES, LLC, Defendant The following papers have been read on this motion: Notice ofMotio~. Affirmation, Affidavit and Exhibits Affirmation in OQPosition and Exhibit Papers Numbered 1 2 ·, Upon the:foregoing papers, it is ordered that the motion is decided as follows: .! Defendant moves, pursuant to CPLR § 321 l(a)(3), for an order dismissing plaintiffs Complaint on the grounds that plaintiff lacks standing to sue, or, in the alternative, moves, pursuant to CPLR § 3212, for an order granting it summary judgment dismissing plaintiffs Complaint; and l!loves, pursuant to 22 NYCRR 202.21(e), for an order vacating the Note oflssue for good cause a~ plaintiff was incompetent at every step of this matter and is unable to initiate or continue litigati9.n; and moves for an order disqualifying plaintiffs attorneys, Elovich & Adell, as plaintiff is un~ble to retain attorney representation as an incompetent. Plaintiff opposes the motion. 1 of 9 [*FILED: 2] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 "\ The instant action was brought to recover for personal injuries allegedly sustained by plaintiff on Augtist 31, 2015, at approximately 9:30 a.m., when he tripped and fell on the sidewalk in front of a building owned by defendant, located at 97-08 Rockaway Boulevard, Ozone Park, County of Queens, State of New York. The action was commenced with the filing I '· of a Summons and Verified Complaint on or about December 27, 2017. See Defendant's Affirmation in Support Exhibit L. Issue was joined on or about February 1, 2018. See id. In support of the motion, counsel for defendant submits, in pertinent part, that, "[t]he Plaintiffs actiori is an alleged 'slip and fall' resulting in a broken ankle occurring on August 31, ,.if 'I 2015 on the street/sidewalk in front of property formerly belonging to the Defendant. The ~I Plaintiff was (sic) a morbidly-obese 400 pound, methadone/heroin addict, who was being [ transported by medical Ambulette when he alleges he asked to 'stop at a deli' to get food, and then either 'lost consciousness' or tripped getting out of the Ambulette. Plaintiff was - in 2015 i found to be men1filly incompetent by the Supreme Court, Queens County, with a legal guardian and lacks 'legal capacity' to bring the above action. In addition, the alleged 'trip and fall' never happened at Defendant's former property- there was never a deli at Defendant's propertyi: Defendant's owner was present at the alleged time of the incident - and nothing happened. {. (· Finally, Plaintiff;waited 2½ years to file this action - after Defendant sold the property - and failed to identify: the 'necessary parties' - the Ambulette company that had control of Plaintiff ' \ until after the three (3) year statute of limitations expired. The medical records of Plaintiff indicate he suffe,red from 'extreme dementia.' The Plaintiff admitted in depositions that he has 'i. used 'every' illegal drug, was arrested 'over a dozen times,' and had been shot by the police for -2- 2 of 9 [*FILED: 3] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 'resisting arrest.•:' This action is improper on many grounds - legal incapacity, impossibility, lack i '· of any credible claim that the twisted ankle actually occurred on Defendant's former property; refusal by Plaintiff to provide necessary discovery; and failure to join necessary parties. This ~ action should never have been filed, is bounded by res judicata by the Supreme Court Queens County, and this: Court should dismiss the action." Counsel ·for defendant further asserts, in pertinent part, that, "in August, 2015, the ' [subject] building was occupied by two tenants - Expo Home Design, Inc. ('Expo') and Prestige Furniture & Mattress, Inc[.] ('Prestige'). The terms of both tenant's leases required them to clean .! ' and maintain the sidewalks in front of the building. The property never had a deli while owned and managed by-Defendant IDS. At the time of the fall Plaintiff was being transported by ' medical ambulette. Plaintiff had the ambulette stop in front of a deli, so he could 'walk to a deli.' At the time of this ,, action, Plaintiff was sixty-two (62) years old. Plaintiffs medical history includes diabetes, obesity, anxiety, dementia, leukocytosis, and opiate addiction." See i Defendant's Affirmation in Support Exhibit H. .. Counsel ,for defendant also contends, in pertinent part, that, "[t]he Plaintiff was adjudicated an i~competent and appointed a Legal Guardian by the Supreme Court, Queens County. He lacks 'legal capacity' to sue .... On June 5, 2015, the Supreme Court, In the Matter of Application of S_teven Banks for Appointment of a Guardian for Frederick Toscano, Queens ,. County Index NR.: 1608/2015, declared Plaintiff incompetent and appointed the Jewish ·l' Association Serying the Aging(' JASA') to be Plaintiffs legal guardian .... This Order states: ' '" 'Frederick Tosc~no is a person in need of a Guardian and the appointment is necessary.' The Court further st*es that the guardian is to 'defend or maintain any administrative, civil or -3- 3 of 9 [*FILED: 4] NASSAU COUNTY CLERK 11/20/2019 03:09 PM ,, NYSCEF DOC. NO. 31 . INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 criminal judiciaf proceeding.' Plaintiffs guardian has refused to be involved in this matter. -1 Plaintiff initiate4 this lawsuit without the consultation nor (sic) involvement of his guardian, 1' despite being declared judicially incompetent. The guardian's name is not on the complaint. The guardian made no court appearances on behalf of Plaintiff. The guardian was not present at the deposition of the Plaintiff conducted on April 8, 2019. CPLR § 3211 (a)(3) provides that '[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground thaU.the party asserting the cause of action has not legal capacity to sue.' The New York Legislatur~ has determined, through enacting the Civile Practice Law and Rules, that a ,, person judicially declared incompetent must appear by his or her guardian or guardian ad litem appointed by the_ Court. [citation omitted]. Plaintiff initiated this lawsuit without the involvement i of his guardian, despite being judicially declared incompetent. Plaintiffs Complaint must be F dismissed for lack of capacity to sue." Counsel for defendant further asserts, in pertinent part, that, "[p]laintiff - represented by the same law firm - commenced a lawsuit in Queens County alleging another 'slip and fall' in 2016, Toscano v, Highland Care Center, Index No.: 713786/16, without his guardian's involvement.. .. Defendant moved to dismiss - on the grounds of 'lack oflegal capacity." The !. Supreme Court, ·9ueens County dismissed Plaintiffs complaint on March 13, 2019, with ,, prejudice .... [T]he ruling by the Supreme Court in the Highland Care Center case is 'res \ ( judicata."' See Defendant's Affirmation in Support Exhibit B. J. .. Counsel for defendant also submits, in pertinent part, that, "[i]t is Plaintiffs testimony that 'my right leg buckled; after taking 'one or two steps' after getting out of the Ambulette .... l Plaintiff made i~consistent statements to attending doctors regarding his fall. Plaintiffs story changes multipl~ times depending on which doctor Plaintiff was talking to. Plaintiffs r.· -44 of 9 [*FILED: 5] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 'testimony' is all over the place - and not credible as a basis to continue this action. Plaintiff also indicated that he'. 'passed out.' Some of the attending physicians recounted that Plaintiff stated he fell on the side~alk; others that Plaintiff fell when stepping down from the curb into the street. ,, \; Plaintiff could n,ot accurately remember what happened to him. Prior to Plaintiffs fall on August ;, 31, 2015, Plaintiff was hospitalized for constant vomiting, nausea, a low grade fever, bloody vomiting, constipation, a possible benzodiazepine overdose, and not eating for six (6) days .... Plaintiff reported to many of his attending doctors that 'he felt dizzy' and wasn't sure ifhe lost consciousness biit 'it felt like it.' ... Plaintiff also made statements to his attending physicians that he fell stepping down from the curb, not on the sidewalk as alleged in Plaintiffs complaint.. .. I Plaintiff also testified, in the proceedings, that he fell after getting down from the ambulette for a ,' ;~ 'food stop;' not~tepping down off a curb." See Defendant's Affirmation in Support Exhibits D-G. In further support of the motion, defendant submits the affidavit ofBahman Cherazi, ' j Chief Executive Officer of defendant corporation. See Defendant's Affidavit in Support. In opposition to the motion, counsel for plaintiff submits, in pertinent part, that, ' [d]efendant fail,s to advise the Court that the defendant moved for this very same relief by Notice of Motion datedAugust 2, 2019, filed with the Nassau County Clerk on August 8, 2019. Plaintiff ' has already subn'litted an Affirmation in Opposition to the defendant's motion, a copy of which is ·f~' annexed hereto a:s Exhibit 'A.' ... The first Motion [Seq. No. 01] before this Court is procedurally l defective in thatit failed to attach as exhibits copies of the pleadings per CPLR 3212(a) .... Therefore, that Motion should not be considered by the Court. Defendant cannot now cure the defect by making the same Motion and attaching new documents (sic) not part of the first Motion." See Plaintiffs Affirmation in Opposition Exhibit A. -55 of 9 [*FILED: 6] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 ii '· The Court notes that, in its October 11, 2019 Decision and Order with respect to Motion \ Seq. No. 01 in the instant matter, it held that, '[a]t the outset, the Court notes that CPLR § 3212(b) reads,)n pertinent part, that, "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (emphasis added)." Counsel for defendant has failed to attach any pleadings to the instant motion. <;::onsequently, said motion is defective. Accordingly, defendant's motion, · pursuant to CPL_R ,, § 3212, for an order granting it summary judgment and dismissing plaintiffs Complaint, is hereby DENIED without prejudice." r Since th~ Court denied Motion Seq. No. 01 on procedural grounds and without prejudice, the Court will e~tertain the instant motion (Seq. No. 02) before it and, in doing so, will refer to the opposition submitted by plaintiff as to Motion Seq. No. 01. See id. i In said opposition, counsel for plaintiff submits, in pertinent part, that "plaintiffs allegation that he was injured on the sidewalk in front of defendant's premises due to an unsafe condition has n(?t been refuted by defendant other than by innuendo, false statement, and ·/ conjecture. Sayiig 'it didn't happen here' is not the basis for a summary judgment motion. In fact, it borders o.n the ridiculous. As to defendant's claims of incapacity to sue, defendant ' ,. misleads the Court as to the facts. In the first instance, there is presently a motion to reargue the decision of Justice O'Donoghue who granted the motion based on plaintiffs late attendance at \, the motion caletjdar. Defendant's motion for lack of capacity on the part of the plaintiff was j based upon an Order of the Hon. Bernice D. Siegal, J.S.C., Queens County, dated May 29, 2015. ;: After a hearing <:>n Mr. Toscano's capacity, Justice Siegal appointed the Jewish Association of )'. Services for the ,.._Aged (hereinafter 'JASA') as guardian for Mr. Toscano, who was found by the ', Court to be incaJ?acitated and in need of a guardian. The guardianship was intended to be r " -66 of 9 [*FILED: 7] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 temporary to arr1nge housing. In the Order JASA was appointed as Guardian for the plaintiff (bottom paragraph on page 2). The Guardian (JASA) was given the authority to defend or maintain any civil judicial proceeding on behalf of Mr. Toscano .... A guardian had, in fact, been appointed for Mr. Toscano but it was unknown by any of the attorneys at the time of the commencement of this action. No request was made to the guardian to be retained to represent Mr. Toscano bec:ause neither we nor the prior attorney in that case [the Queens County actionJ knew of the guardianship until defendant's Motion. On 10/15/18, a Stipulation was entered before Justice O'Donoghue to adjourn the said Motion to 11/17/l 8, and the Court ordered that a representative of JASA appear. An attorney appeared for the Guardian, JASA, and advised the \ Court that a Petition to Withdraw the Guardianship had been filed but had been withdrawn (for ;; reasons unknown to him). The attorney then told [the] Court that they would make (sic) / application to Judge Siegal to withdraw the guardianship and to discontinue the legal \ guardianship. El.ovich & Adell contacted JASA on numerous occasions both by telephone and by letter/email for updates on the application to Justice Siegal and advising them to appear in Court. r On the return date of the Motion (March 13, 2019) J ASA did not respond, and after calling .. JASA, Mitchel Sommer from Elovich & Adell was told that an attorney was in Judge Siegal's part. After checking in he went to Judge Siegal to try to ascertain if an attorney for JASA was in ( i Judge Siegal's P\irt he could not find him or her. He then tried to ascertain whether an Order had ,~ been signed by Judge Siegal to terminate the guardianship. The Clerk told him to go to Room ' I· 100 (the guardianship clerk) and have a computer print-out as to the status of the matter. Judge :i Siegal signed an Order to Show Cause on 12/19/18 based upon the Court's decision dated I 11/28/17. Mr. Sommer then returned to Judge O'Donahue's (sic) part only to learn he missed the I Calendar call anp the Motion was granted without opposition. Of equal importance, Judge Sher -7- )i 7 of 9 [*FILED: 8] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 was intimately a)¥are of all the details concerning the alleged guardianship. Judge Sher directed ' the parties to pro.ceed through discovery and certify the case despite the uncertain status of the guardianship." See id. The Court notes that, on September 19, 2019, Justice Peter J. O'Donoghue, Supreme Court Queens County, denied the above detailed motion to re-argue. CPLR § J21 l(a)(3) states that, "[a] party may move for judgment dismissing one or more causes of action'.asserted against him on the ground that: ... 3. the party asserting the cause of ,, action has no legal capacity to sue." As asserted by counsel for defendant, in a May 29, 2015 ' Order issued by The Honorable Bernice D. Siegal, Justice of the Supreme Court, Queens County, ) plaintiff was "determined to be a person in need of a guardian requiring the appointment of a -, Special Guardian of the Property as the Court has found that FREDERICK TOSCANO is in need j of a guardian and has consented to the appointment of a Special Guardian with limited powers ., and for a limited, duration; ... the Special Guardian shall move this court to be discharged as -•., special needs gu~dian upon the proper placement of FREDERICK TOSCANO, unless a motion ' is made to exte~d the term of this guardianship in order to set up a supplemental needs trust; ... " See Defendant's1Affirmation in Support Exhibit A. The Court notes that the Guardianship for plaintiff was in effect until December 19, 2018, I when The Honorable Bernice D. Siegal, Justice of the Supreme Court, Queens County, signed an ") r,.. Order stating th~t plaintiff no longer needed a Guardian. Consequently, when the instant matter was commenceq, on or about December 2 7, 2017, plaintiff lacked the legal capacity to sue. See i' CPLR § 1201. -i:.· -88 of 9 [*FILED: 9] NASSAU COUNTY CLERK 11/20/2019 03:09 PM NYSCEF DOC. NO. 31 INDEX NO. 614099/2017 RECEIVED NYSCEF: 11/20/2019 Accordingly, based upon the above, the branch of defendant's motion, pursuant to CPLR 1: § 321 l(a)(3), for an order dismissing plaintiffs Complaint on the grounds that plaintiff lacks standing to sue, is hereby GRANTED. The branches of defendant's motion, pursuant to CPLR § 3212, for an order granting it summary judgment dismissing plaintiffs Complaint; and, pursuant to 22 NYCRR 202.21(e), for an order vacating the Note of Issue for good cause as plaintiff was incompetent at every step of this matter and is unable to initiate or continue litigation; and for an order disqualifying ' plaintiffs attoni~ys, Elovich & Adell, as plaintiff is unable to retain attorney representation as an incompetent, are.hereby DENIED as moot. This constitutes the Decision and Order of this Court. Dated: Mineola,= New York November 19, 2019 ENTERED NOV 2 0 2019 NASSAU COUNTY COUNTY CLERK'S OFFICE ,,' -99 of 9

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