Rizzo v Brookside Mgt. Corp.

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Rizzo v Brookside Mgt. Corp. 2019 NY Slip Op 34619(U) November 4, 2019 Supreme Court, Dutchess County Docket Number: Index No. 2017-52695 Judge: Christi J. Acker 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. 2017-52695 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/06/2019 To commence commence the the 30-day 30-day To statutory time period period for appeals statutory time appeals of right right (CPLR (CPLR 55 5513[a]), l 3[a]), you you as of copy of of this are advised advised to serve a copy order, with notice of entry, upon notice of parties. all parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF DUTCHESS COUNTY DUTCHESS ,. -------------------------------------------------------------x -------------------------------------------------------------x CATHY RIZZO, RIZZO, CATHY Plaintiff, Plaintiff, DECISION ORDER DECISION AND AND ORDER -against-against- Index 2017-52695 Index No.: No.: 2017-52695 BROOKSIDE MANAGEMENT MANAGEMENT CORP., BROOKSIDE CORP., BROOKSIDE GARDENS LLC, BROOKSIDE BROOKSIDE GARDENS LLC, BROOKSIDE GARDENS GARDENS INC., INC., BROOKSIDE BROOKSIDE GARDEN GARDEN ASSOCIATES and BROOKSIDE GARDEN ASSOCIATES LLC and BROOKSIDE GARDEN APARTMENTS, APARTMENTS, Motion Seq. #2 Motion Defendants. Defendants. -------------------------------------------------------------x -------------------------------------------------------------x ACKER, ACKER, J.S.c. J.S.C. The following following papers, papers, nwnbered Gardens, The numbered 1I to 25, were were read read on Defendant Defendant Brookside Brookside Gardens, Inc.'s (hereinafter "Brookside "Brookside Inc.") CPLR 3212 3212 to dismiss Complaint and and Inc. 's (hereinafter Inc.") motion motion pursuant pursuant to CPLR dismiss the Complaint sanctions because of Plaintiff counsel's frivolous frivolous conduct: conduct: for sanctions because of Plaintiff and Plaintiffs Plaintiffs counsel's Motion-Affirmation of Jonathan B. Nelson, Nelson, Esq. with with Exhibits Exhibits A-NA-NNotice of Notice of Motion-Affirmation of Jonathan Affidavit of Martin Affidavit of Martin Rogowsky Rogowsky ....................................................................................... 1-17 Affirmation Partial Opposition Opposition of of Mark Cambareri, Esq. Mark P. Cambareri, Esq. with with Affirmation in Partial Exhibits Exhibits 1-5 .................................................................................................................. 18-23 Affirmation Further Support Support of of Jonathan Affirmation in Further Jonathan B. Nelson, Nelson, Esq ............................................. 24 After filing of of the instant circulated a stipulation stipulation of After the filing instant motion, motion, Plaintiff Plaintiff circulated of discontinuance discontinuance as to Defendant Defendant Brookside and has indicated indicated in its partial opposition that longer wishes Brookside Inc. and partial opposition that she no longer wishes to pursue action against against said Defendant. pursue her action Defendant. [* 1] Accordingly, motion Accordingly, Defendant Defendant Brookside Brookside Inc's Inc. 's motion 1 of 7 II I 1 II INDEX NO. 2017-52695 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/06/2019 summary judgment dismissing the Complaint Complaint is granted granted in its entirety. entirety. for summary judgment dismissing Defendant's request request Defendant's for sanctions sanctions remains remains extant extant and will be addressed addressed by the Court Court herein. herein. The instant instant action action was commenc~d commenced against against the Defendants Defendants with with respect respect to a trip and fall The that occurred occurred on or or about about February February 11, II, 2016 2016 at a premises premises known known as "Brookside "Brookside Garden Garden that Apartments" New York. Apartments" located located in or around around 1I Colonial Colonial Drive, Drive, Wappinger Wappinger Falls, Falls, New According According to Affidavit of of Martin Martin Rogowsky, Rogowsky, President President of of Defendant Defendant Brookside, Brookside, Inc., Inc., said said Defendant Defendant does does the Affidavit not have and has never never had any any ownership ownership interest, interest, management management responsibility responsibility or any any other other involvement with with the property property on which which Plaintiff Plaintiff alleges alleges to have have fallen. fallen. involvement Pursuant to the Affirmation Affirmation of of Jonathan Jonathan B. Nelson, Nelson, Esq. (hereinafter (hereinafter "Mr. "Mr. Nelson"), Nelson"), Pursuant counsel for Defendant Defendant Brookside Brookside Inc., after after receiving receiving the Complaint, Complaint, he contacted contacted Plaintiffs Plaintiffs counsel counsel on June June 12, 12,2018. counsel 2018. Nelson advised advised Plaintiff's Plaintiffs counsel counsel that that Defendant Defendant Brookside Brookside Inc. Mr. Nelson have any interest interest in the subject subject property. property. did not have According to Mr. Nelson, Nelson, Plaintiffs Plaintiffs counsel counsel According reported that that he would would be serving serving notices notices to admit admit as to ownership ownership and then then would would discontinue discontinue reported accordingly. accordingly. Pursuant 2018, Plaintiff was to serve Pursuant to the Preliminary Preliminary Conference Conference Order Order dated dated July July 18, 18,2018, Plaintiff was serve notices to admit admit on or before before August August 1, 1,2018. notices 2018. When Plaintiff's Plaintiffs office office contacted contacted Mr. Nelson When Nelson seeking dates dates for depositions depositions on July July 27, 2018, 2018, Mr. Nelson Nelson responded responded that that his client client was not seeking not a proper party party and that that if ifhis client was not let out of of the case case before before depositions, depositions, he would would move move for his client proper summary judgment after depositions depositions and seek sanctions sanctions against against the Plaintiff Plaintiff and Plaintiffs Plaintiff s summary judgment after counsel. counsel. Pursuant to an e-mail e-mail dated datedSeptember20.2018.Mr. Nelson noted noted that that Plaintiff Plaintiff had had Pursuant September 20, 2018, Mr. Nelson serve the notices notices to admit admit by August August 1, I, 20 2018 again put put Plaintiffs Plaintiffs counse] counsel on notice notice failed to serve I 8 and again 22 [* 2] 2 of 7 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 INDEX NO. 2017-52695 RECEIVED NYSCEF: 11/06/2019 that he would move for summary summary judgment seek sanctions sanctions asserting action is frivolous frivolous that would move judgment and seek asserting that that the the action without supportable basis. without any supportable basis. Appearances were were held before October 1, I, 2018 2018 and October 2019 and a October II, I I, 2019 Appearances before this Court Court on October Plaintiff on that that same day. Notice to Admit ultimately served Notice Admit was ultimately served by Plaintiff Defendant Brookside Brookside Inc. Defendant responded notice on October 2018, denying involvement with with the property property in responded to said said notice October 15, 15,20]8, denying any involvement question. question. It is uncontested offer to discontinue discontinue the action against uncontested that that Plaintiff Plaintiff did not offer the action against Defendant Defendant Brookside said Defendant October 3 31, Brookside Inc. until until after after said Defendant had filed the instant instant motion motion on October I, 2018. 2018. Notably, submitted by Plaintiff does not contain an affirmation affirmation or affidavit affidavit Notably, the opposition opposition submitted Plaintiff does nor contain attorney regarding regarding the allegations allegations contained Nelson's affirmation. affirmation. from the handling handling attorney contained in Mr. Nelson's Instead, Mark Esq. submits partial opposition opposition and asserts asserts that that Matthew Matthew Samraldi, Instead, Mark P. Cambareri, Cambareri, Esq. submits the partial Samraldi, Esq. could submit the opposition of the allegedly allegedly short short time frame given time frame given for response. response. could not not submit opposition because because of Mr. Cambareri Cambareri details details the purported Samraldi in purported pre-action pre-action investigation investigation conducted conducted by Mr. Samraldi arriving at the various "Brookside" entities were ultimately herein. arriving various "Brookside" entities that that were ultimately named named as Defendants Defendants herein. Mr. Cambareri provides documentation that Defendant Defendant" Brookside Brookside Management Management Corp., Cambareri provides documentation showing showing that Corp., property and that referred Plaintiff's counsel referred to by Plaintiffs counsel as the "lead" "lead" Defendant, Defendant, was the owner owner of of the property Brookside deed related "Grantor." Notably, Brookside Associates Associates was was listed listed on a deed related to the property property as a "Grantor." Notably, there there is specific documentary evidence submitted submitted demonstrating demonstrating that Defendant no specific documentary evidence Defendant Brookside Brookside Inc. had any ownership interest property. ownership interest in the property. Plaintiffs counsel asserts that Secretary of of State's State's website Plaintiffs counsel asserts that the Secretary website searched for entities with "Brookside "Brookside Gardens" Gardens" in their was searched entities with their name name in case case the the deed deed owner owner had leased similarly named entity. leased the premises premises to another another similarly named entity. It appears appears that the other "Brookside" other "Brookside" Defendants corporate name contained Defendants were were named named as parties parties herein herein merely merely because because their their corporate name contained "Brookside Gardens." Gardens." "Brookside 3 [* 3] 3 of 7 INDEX NO. 2017-52695 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/06/2019 Nevertheless, non-frivolous basis continue Nevertheless, Plaintiffs Plaintiffs counsel counsel asserts asserts that the firm had a non-frivolous basis to continue to pursue against Defendant denied pursue the action action against Defendant Brookside Brookside Inc. because because the lead Defendant Defendant denied ownership of the property asserted cross claims against against the other other Defendants. Defendants. property and asserted cross claims ownership of Moreover, Mr, Moreover, Mr. Cambareri asserts asserts that that Mr. Mr, Samraldi Samraldi was "leery" "leery" to act on Mr, statements based only Cambareri Mr. Nelson's Nelson's statements based only upon conversations or e-mails. e-mails. upon telephone telephone conversations Although Cambareri seems seems to concede concede that Mr, Although Mr, Mr. Cambareri Mr. Samraldi failed failed to timely timely serve serve the Notices Admit, no explanation explanation is provided failure. Samraldi Notices to Admit, provided for this failure. Moreover, Cambareri asserts asserts that Defendant submit any discovery discovery Moreover, Mr, Mr. Cambareri Defendant Brookside Brookside Inc. did not not submit responses. responses. However, Defendant responded Notice to However, it is uncontested uncontested that said Defendant responded to Plaintiff Plaintiffss Notice Admit October 15, 15,2018 ownership, management with the Admit on October 2018 and denied denied all ownership, management or other other involvement involvement with property property in question. question. The Court notes seeking sanctions sanctions against against Plaintiff, Brookside Inc. does does Plaintiff, Defendant Defendant Brookside The Court notes that that in seeking not case law support of application. However, not reference reference a rule or case law in support of the application. However, pursuant pursuant to 22 NYCRR NYCRR 130-1.1, an award award of of costs, costs, including including an attorney's may be imposed against a party attorney's fee, may imposed against party for 130-1.1, frivolous conduct. conduct. RKO Dept. 201 2010]. frivolous RKO Properties, Properties, Ltd. v. v. Boymelgreen, Boymelgreen, 77 AD3d AD3d 721 [2d Dept. O]. Conduct is defined frivolous if "(I) it is completely completely without without merit merit in law and cannot cannot be Conduct defined as frivolous if "(1) supported by a reasonable argument for an extension, extension, modification reversal of of existing existing law; supported reasonable argument modification or reversal deJay or prolong of the litigation, harass or (2) it is undertaken undertaken primarily primarily to delay prolong the resolution resolution of litigation, or to harass maliciously factual statements statements that that are false." maliciously injure injure another; another; or (3) it asserts asserts material material factual false." 22 NYCRR 130-1.1 ((c). determination whether whether the conduct frivolous, "the "the court court making a determination conduct was frivolous, NYCRR 130-1.1 c). In making consider, among among other circumstances under under which which the conduct shall consider, other issues issues the circumstances conduct took took place, place, including time available available for investigating investigating the legal or factual factual basis of the conduct, conduct, and and including the time basis of whether or not the conduct when its lack of of legal or factual factual basis apparent, whether conduct was continued continued when basis was was apparent, 4 [* 4] 4 of 7 INDEX NO. 2017-52695 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/06/2019 should should have have been apparent, apparent, or was brought brought to the attention attention of of counsel counseloror the party." party." Id. In the instant instant matter, matter, it is uncontested uncontested that Plaintiff's Plaintiffs counsel counsel was was apprised apprised on or about about June 12, 12,2018 counsel that Defendant Defendant Brookside Brookside Inc. was not a proper proper party. party. June 2018 by counsel Significantly, Significantly, other than than the lead Defend_ant's Defendant's denial denial of of ownership ownership and its assertion assertion of of cross cross claims claims against against the other other other Defendants, Defendants, Plaintiff Plaintiff has not not provided provided any valid valid basis basis upon upon which which Defendant Defendant Brookside Brookside could have have been been considered considered a proper proper Defendant Defendant herein. herein. Inc. could Upon being being advised advised in June June 2018 2018 Upon that Defendant Defendant Brookside Brookside Inc. was was not a proper proper party, party, Plaintiffs Plaintiffs counsel counsel could could have have requested requested an that affidavit to this this effect, effect, or immediately immediately served served the Notice Admit which which would would have have provided provided affidavit Notice to Admit sworn documentation documentation supporting supporting a discontinuance discontinuance against against said Defendant. Defendant. sworn Further, it is also Further, uncontested uncontested that that Plaintiff's Plaintiffs counsel counsel did not serve serve the Notices Notices to Admit Admit until October October 11, II, 2018, 2018, four ((4) months after after being being advised advised that that Brookside Brookside Inc. was not a proper proper party party and more more than than two four 4) months months past past the court court ordered ordered date. (2) months Finally, Plaintiff Plaintiff did not offer offer to discontinue discontinue the action action Finally, J) until after after Defendant Defendant Brookside Brookside Inc. made made the instant instant motion, motion, even even though though the October October 15, 2018 2018 Response Response to the Notice Notice to Admit Admit specifically specifically denied denied any involvement involvement by Defendant Defendant Brookside Brookside property in question. question. Inc. in the property Court also notes notes that that this issue issue was discussed discussed extensively extensively at conferences conferences on October October The Court 11,2018. 1I and 11, 2018. October 1, 1,2018, noted on the record record that that Plaintiff Plaintiff had had failed failed to serve serve On October 2018, it was noted Notices to Admit Admit and the attorneys attorneys were were directed directed to return return on October October 11, II, 2018 2018 to further further the Notices discuss discuss the discontinuance discontinuance against against Defendant Defendant Brookside Brookside Inc. and Defendant Defendant Brookside Brookside Garden Garden Associates, LLC. LLC. Associates, Court's notes notes reflect reflect that that at the October October 111,2018 conference, Plaintiff's Plaintiffs The Court's I, 2018 conference, counsel counsel Matthew Matthew Samraldi, Samraldi, Esq. failed to appear appear in person person and the Court Court conducted conducted the conference in chambers, chambers, with with Mr. Samraldi Samraldi on the phone phone and Defendants' Defendants' attorneys attorneys appearing appearing in conference 5 [* 5] 5 of 7 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 INDEX NO. 2017-52695 RECEIVED NYSCEF: 11/06/2019 person. issues were discussed at length length and Plaintiff counsel could concrete person. The issues were discussed Plaintiff'ss counsel could not not provide provide a concrete basis upon upon which which to continue action against Defendant Brookside ~rookside Inc. basis continue the action against Defendant Even after after receipt receipt of Even of the denial contained contained in the October counsel October 15, 2018 Response Response to the Notice Notice to Admit, Admit, Plaintiff Plaintiffss counsel discontinue against failed to discontinue against Defendant Defendant Brookside Brookside Inc. Based circumstances in this case, the Court Court finds Based upon upon the totality totality of of the circumstances finds that that Plaintiff Plaintiff continued this action action against against Defendant after the lack lack of of legal or factual basis continued Defendant Brookside Brookside Inc. after basis was apparent. . However, of the Response apparent. However, this lack was manifest manifest only after after the service service of Response to the Notice Notice to Admit. Admit. Accordingly, Court determines determines the following conduct as frivolous: Accordingly, the Cou1t following conduct frivolous: Plaintiffs Plaintiffs delay in serving Notice to Admit Admit and counsel's counsel's failure failure to discontinue after receipt receipt of of sworn sworn serving the Notice discontinue after proof that Defendant Defendant Brookside Brookside Inc. had no involvement with the property property in question. question. proof involvement with As a result, Defendant Brookside Brookside lnc. required to prepare prepare a motion motion for summary result, counsel counsel for Defendant Inc. was required summary judgment to secure secure the offer action. Moreover, Moreover, Plaintiffs Plaintiffs counsel judgment offer to discontinue discontinue the action. counsel was on make the motion, motion, sanctions notice that should Defendant Brookside Brookside lnc. have to make notice should counsel counsel for Defendant Inc. have sanctions would be sought. would sought. Mr. Nelson Nelson provided provided the billing billing information information regarding regarding his firm's work on this case as firm's work Exhibit summary Exhibit A to his Affirmation Affirmation in Further Further Support.! Support. 1 The Court Court has reviewed reviewed the billing billing summary determines that $1,500.00 $1,500.00 is an appropriate appropriate sanction sanction in this case. Therefore, Therefore, Plaintiffs Plaintiffs and determines counsel Nelson's firm in the amount $1,500.00. This amount is counsel shall issue issue a check check to Mr. Nelson's amount of of$I,500.00. This amount due only from Plaintiffs Plaintiff's firm and shall not be charged Plaintiff as a disbursement disbursement or fee. charged to Plaintiff such; it is hereby As such; hereby ORDERED that Defendant Defendant Brookside Brookside Gardens, Gardens, Inc. 's motion summary judgment ORDERED Inc.'s motion for summary judgment is 1 1 The Court Couri notes Nelson submitted submitted the Affirmation Affirmation in Further Suppol1 without charge to his his client. The notes that Mr. Nelson Further Suppo11 without charge 6 [* 6] 6 of 7 INDEX NO. 2017-52695 FILED: DUTCHESS COUNTY CLERK 11/07/2019 02:30 PM NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/06/2019 GRANTED GRANTED and the Complaint Complaint and any cross cross claims claims asserted asserted against against said Defendant Defendant are dismissed; and it is further further dismissed; granted ORDERED that the Defendant Defendant Brookside Brookside Gardens, Inc.'s motion motion for sanctions ORDERED that Gardens, Inc.'s sanctions is granted extent that $1,500.00 in attorneys' attorneys' fees to be paid paid for by to the extent that said Defendant Defendant is awarded awarded $1,500.00 Plaintiffs finn, without charge to Plaintiff Plaintiffs firm, without charge Plaintiff herself. herself. The foregoing constitutes constitutes the Decision Order of of the Court. Court. The foregoing Decision and Order Dated: Poughkeepsie, New York Dated: Poughkeepsie, New York November 2019 November 4, 2019 CAuu.'~. CHRISTI J. CHRISTI To: All parties parties via ECF ECF 7 [* 7] 7 of 7 c1-~ KER, J.S.c. KER, J.S.C

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