Brooks v New Dawn Tr. LLC

Annotate this Case

Download PDF

Brooks v New Dawn Tr. LLC 2020 NY Slip Op 34039(U) December 7, 2020 Supreme Court, Kings County Docket Number: 519486/17 Judge: Lawrence S. Knipel 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 12/08/2020 11:36 AM NYSCEF DOC. NO. 127 INDEX NO. 519486/2017 RECEIVED NYSCEF: 12/08/2020 At an IAS Term, Part 57 of the Supreme CoUrt of the State of New York, held in and for the-C9unty of Kings, at tl1e Courthouse, at Civic C~nter, Brooklyn, New York, on the 7th day of Decei,Tiber, 2020. . PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X MATTIE BROOKS, Plaintiff, Index No. 519486/17 - against NEW DAWN TRANSIT LLC, RAINBOW TRANSIT INC., FEDERAL AUTOMOTIVE SERVICES INCORPORATED, HALMON MILLER, AW A GN!NG, JEAN MAYO, MV TRANSPORTATION, INC., AUTUMN LEMONS,_ NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, MTA NYC TRANSIT, PARATRANSIT DIVISION and ACCESS-A-RIDE, Defendants. - - -- - - -- - - - - - - - - - - - - - - - - - -- - - - - -- - -X The following e-filed papers read l1erein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petitio11/Cross Motion and Affidavits (Affirmations) Am1exed. _ _ _ __ Opposing Affidavits (Affirmations), _ _ __ 95-116 122 Upon the foregoing papers in this personal injury action regarding an automobile accident, plaintiff Mattie Brooks (Brooks) moves (in motion sequence [mot. seq.) four) for an order, pursuant to CPLR 2221 (a) and/or 5019 (a), to resettle the August 13, 2odo order and correct the na1ned defendant in that order. Brooks' counsel contends that defendant Rainbow Transit Inc. (Rainbow Transit) 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/08/2020 11:36 AM NYSCEF DOC. NO. 127 INDEX NO. 519486/2017 RECEIVED NYSCEF: 12/08/2020 "is the party that has refused to appear for an EB'f in this i11atter to date." According ~o a Septe1nber 18, 2019 Final Pre-Note Conference Order, Rainbow Transit was require~ to be deposed on Dece1nber 3, 2019. Brooks' counsel affir1ns that Rainbow 'fransit "'did ~ot appear on that date and despite nu1nerous telephone calls by my office has not appeafed for a deposition to date." Consequently, on February 26, 2020, Brooks moved (in rriot. ' seq. three) for an order co1npelli11g Rainbow 'fransit to appear for a deposition. Notab:ly, Rainbow 1~ransit did not oppose Brooks' motion to co1npel. By an Aug11st 13, 2020 order, this c_ourt ordered, in part, that defendant New DaWn Transit (New Dawn) appear for an examination before trial by October 15, 2020 or ~e precluded fro1n testifying at trial or submitting an affidavit in any dispositive inoti~n . . Plaintiff's counsel contends that "[t]his was a clerical error" becattse the order -w;as supposed to con1pel and/or preclude defendant Rainbow 'I'ransit, and not New Da"1n_, which has already been deposed. For this reason, Brooks novv moves to resettle and/or correct the Attgust 13, 2020 order so that it directs Rainbow Transit, the correct party defendant, to appear for; a deposition or be precluded. Brooks' counsel further notes that the August 13, 2020 ordbr also directed defendants Rainbow Transit, New l)awn/I--Ialinon Miller and Je~n Mayo/Gning to serve responses to the Preli1ninary Conference Order by Septe1nber 30, 2020, and "[t]o date, [those] defendants have not provided the aforementioned responses." 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/08/2020 11:36 AM NYSCEF DOC. NO. 127 INDEX NO. 519486/2017 RECEIVED NYSCEF: 12/08/2020 Brooks' counsel asserts that "[tlhe instant 1notion for resettletnent <lf the Ordef: is only to correct a11 obvious error ... and not in any \Vay to change the substance of ~he Order." Brool(s furtl1er argues that "[a]ny objection or opposition to this 1nbtion shot;ild not be considered" since Rainbow Transit did not oppose the prior 1notio11 to co1npcl. .. Rainbow 1~ra11sit, in partial opposition, submits an attorney affir1nation asserting that "this office is ready to proceed with the deposition of Rainbow [Transit l" and that . "[tJl1ere has never bee11 a willful or cont11macious f'ailure to appear." Defense coun~cl admits· tl1at "there vvas a delay in finding a knowledgeable witness, as it took some ti1ne:to . identify the appropriate person with Imowledge." In addition, defense counsel asserts ttjat "there was and still remains difficulty caused by the COVJD-19 pandemic." Rainbdw . 1'ransit requests that the October 15, 2020 deposition date be extended so that jts deposition can be conducted. Under CI>LR 5019 (a), the court has the power to tnake clerical atnendments to ~n order without changing the substance of the order (Salvati v Salvati, 208 AD2d 516, 5 6 [1994]). Here, Brooks has demonstrated that the August 13, 2020 order contains. a • typographical error because it erroneously compels New Dawn, instead of RainboW 1'ransit, to appear for a deposition or be precluded. Correction of the August 13, 20·20 order is warra11ted, tinder these circumstances. Accordingly, it is ORDERED that I3rool(s' motion (in tnot. seq. four) is granted, and this court1s August 13, 2020 order is hereby·a1ne11ded and corrected to read as follows: 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/08/2020 11:36 AM INDEX NO. 519486/2017 NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 12/08/2020 "Plaintiff's motion to rcstore/cotnJJe]/precludc is granted, there bei11g no opposition. Defendant Rainbow Transit to appear for EBT by 1115121 or be precluded from testifying at trial or subtnitting affidavit in any dispositive tnotion without necessity for further 1notion by plaintiff. D'efendants Rai11bow Transit, New Dawn at1d Mayo/Gning to serve responses to P.C. order by 12131120. Note of issue to be filed by 2112121 (emphasis added). This constitutes the decision a11d order of the court. ENTER, 1. S. ' ' Justice Lawrence Knip@\ 4 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.