Madatova v City of New York

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Madatova v City of New York 2020 NY Slip Op 34236(U) December 18, 2020 Supreme Court, Kings County Docket Number: 506236/2016 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 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 At an IAS Ter1n, Part 57 of the Supre1ne Court of the State of Ne\V York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New Yori(, on the Jith day ofDece1nber, 2020. PRE SENT: HON. LAWRENCE KNIPEL, Justice. -------------------------------------------------------------------- )( Index No. 506236/2016 ELYA MADt\TOVA, J>laintiffs, - against Mot. Seq. 4 THE CITY OF NEW YORK AND THE NEW YORK CITY TllANSJT AUTHORITY AND DYNASERV INDUSTRIES, INC., Defendant. ------------------------------------------------------------------)( 'f'he following e-filed papers read herein: NYSCEF Doc. Nos. Notice of Motion, Affidavit/Affirmation/Annexed Exhibits Opposing Affidavits (Af1irn1ations)/Annexed Exhibits Ileply Affidavits (Affirmations) 84-96 97-107 109-110 Upon the foregoing papers, defendant Dynaserv Industries 1 Inc. (Dynaserv) moves, in 1notion sequence (1not. seq.) four, for an order, pursuant to CPLR 5015, setting aside the court's August 5, 2020 order. Background Plaintiff brings this action against the City of New York (City), the New York City 'I'ransit Authority ("l'ransit) a11d Dynaserv clai1ning that she sustained person.al injuries on February 28, 20 IS as a result of allegedly slipping and falling on snow and ice while attempting to board a city bus at a bus shelter in Brooklyn. By order dated March 8, 1 of 10 [*FILED: 2] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 2019, all claims and cross claims against Transit were dismissed with prejudice. On September 10, 2019, plaintiff served Dynaserv with a supplemental notice for discovery and inspection (the Supplemental Notice). The Supplemental Notice requested digital copies of two photograpl1s, including 111etadata infor1natio11, of the bus shelter where plaintiff allegedly fell, that previously were turned over by Dynaserv in its July 23, 2019 supplemental response to the preliminary conference order (the PC Response). In the PC Response, Dynaserv produced color images of the two photographs, allegedly taken during service visits on February 26, 2015 and February 27, 2015, with those dates purportedly reflected by the metadata information on the images. A July 23, 2019 email from Dynaserv's counsel attaching a digital copy of the response stated that the dates tl1at the photographs were taken \Vas noted on the inetadata images. The email shows the names of attached image files as "BR02360 - out_20150226_110320_3_82 - 022615 service visit- 07219 - GM.jpg" and "BR02360 - out_20150227_103801_3 _14 - 022715 service visit - 07219 - GM.jpg." At the final pre-note conference on October 30, 2019, the court issued an order directing Dynaserv to respond to the Supplemental Notice by November 30, 2019. On February 7, 2020, plaintiff served Dynaserv with a second supplemental notice for discovery and inspection (the Second Supplemental Notice) requesting a copy of the post installation inspection report that co1Tesponds with the two previottsly requested photographs. On July 21, 2020, plaintiff moved to strike Dynaserv's answer for their alleged failure to comply with the court's October 30, 2019 order. Plaintiff noticed the motion 2 2 of 10 [*FILED: 3] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 for August 5, 2020, but Dynaserv did not oppose the motion and did not appear in court that day. As a result, on August 5, 2020, the court issued an order, without opposition, directing Dynaserv to respond to both tl1e Supplemental Notice and the Second Supplemental Notice, and to provide all outstanding discovery ordered by the court in its October 30, 2019 1 order no later than September 7, 2020. The court further directed that D)1naserv would be precluded from testifying or offering evidence at trial unless it tiinely complies with the order. Parties' Co11tentio11s: Defendt1nt Dynaserv Dynaserv contends that its counsel's failure to oppose the plaintiffs 1notion was not intentional but was unforeseeable and beyond his control, and thus excusable under CPLR 5015. In that regard, Dynaserv's counsel, Todd McCauley of the McCauley Law Firm, PLLC (McCauley), asserts iliat as part of the widespread damage caused by cfropical Starin Isais, McCattley Jost all power, internet, land line and cell phone coverage from August 4, 2020 through August 11, 2020. McCauley states that the damage, which included do,v'ned trees a11d power lines, resulted in Gove111or C1romo declared a state of e1nergency for dow11state New Yori(. McCauley avers that Westchester County, wl1ere he resides and maintains an office, Was among the hardest areas hit by the storm. As a result of the storm, McCauley contends that he was unable to submit opposition papers to the 111otion, as indicated on the return date, which was the first time that the inotion was on the court's calendar. On August 5, 2020, the court granted the plaintiffs motion without oppositio11. McCatrley states that once po1ver \Vas restored, he telephoned plaintiff's The August 5, 2020 reference to tl1e court's prior "October 20, 2019" order is a typographical error. 3 3 of 10 [*FILED: 4] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 attorney, Andrew Weitz, who refused to resolve the 1notion by stipulation, nece_ssitating the filing of this motion. McCauley also states that he telephoned the court's motion support part to advise of the circun1stances, bt1t was told to await the receipt of the decision, \Vhich was not available at the ti1ne of l1is call. In addition, Dynaserv contends that it previously provided all discovery responsive to plaintiff's Supple1nental Notice and references its PC Response. Dynaserv notes that its July 23, 2019 email shows the City's identification numbers for its bus shelter and the date_s of Dynaserv's service visits. Dynaserv states that despite previously providing the requested discovery, it again provides digital copies of the subject images in CD for1nat annexed to the instant 1notion. With regard to the Second Supplemental Notice, which de1nands a copy of a post-installation inspection report that purpo1iedly corresponding to the two subject photographs, Bradley J. Gruber (Gruber), Dynaserv's owner, attests that 110 such report exists. Gruber attests that such reports would only be generated if requested by the New York City Department of Transportation (DOT), which has not 1nade such a request in this case. Finally, Dynaser\r contends that it has thus established a meritorious defense to plaintiffs 1notion to stril<e ·for failure to produce discovery, and is therefore entitled to relief from the court's August 5, 2020 order. Parties' Conte11tio11s: Pltrintiff Madatova In its opposition, plaintiff contends that Dynaserv failed to provide a detailed and credible explanation for its default on August 5, 2020 and its noncompliance with the court's August 5, 2020 order. In that regard, plaintiff argues that Dynaserv had sufficient 4 4 of 10 [*FILED: 5] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 time to comply with the order, noting that it had 26 days from the time that the purported power outage ended on August 11, 2020 until the September 7, 2020 compliance deadline, to produce discovery. Plaintiff also notes that the affidavit provided by D;·naserv's owner regarding post-installation reports was served on Septe1nber 16, 2020, nine days after the discovery deadline. Plaintiff further argues that Dynaserv has engaged in a pattern of clear neglect, ( 1) by failing to appear at the October 30, 2019 pre-note conference, (2) by failing to oppose plaintiff's motion to .strike Dynaserv's answer for their failure to comply with the Court's October 30, 2019 order, which was ultimately decided on default, and (3) by failing to comply with the August 5, 2020 order in questio11. In addition, i1laintiff C(lntends that contrary to Dynaserv's assertions, it has not yet provided the metadata information for the two bus shelter photographs. Plaintiff alleges that tl1ere was no 1netadata in tire CD served with the PC Response and no additional report, 1ne1no, affidavit, or any other type o'f record indicating the date the photos were taken. Plaintiff states that after accessing the file information for the subject photographs, it showed that the images were "taken" on July 23, 2019, which plaintiff contends was not the date that the_ photos were actually taken but \.vhen the e1nail was sent. Plaintiff also asserts that Dynaserv never followed up with a hard copy of the photographs as stated in the email. Further, plaintiff states that the CD provided by Dynaserv on September 17, 2020 in support of this motion did not contain metadata for the subject i1nages. Finally, plaintiff contends that Dynaserv has failed to demonstrate a potentially 5 5 of 10 [*FILED: 6] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 nieritorious defense to the action. To that end, plaintiff argues that at the deposition, DOT director of operations John Schneider testified that defendant was subcontracted to re1nove SUO\V fro1n NYC bus shelters. Plaintiff argues that defendant did not address the issue of a potentially 1neritorious defense in their mo\ri11g papers, and did not attach even a single affidavit of rnerit, deposition transcript or other docu1nent alleging that defenda11t re1noved snow and ice from tl1e subject bus stop. According to plaintifI, the Gruber affidavit is insttfficient to establish a meritorious defense. Discussion A court, in its discretio11, may relieve a party from its order on the ground of a party's "excusable default" (CPLR 5015 [a] [IJ). To prevail on a motion to vacate an order 011 tl1is ground, a pa1iy 1nust de1nonstrate a reasonable excl1se for the default a11d a potentially meritorious defense (see Chowdhury v Weldon, 185 AD3d 649, 649 [2d Dept 2020]; Jian Hua Tan v AB Capstone Dev., LLC, 163 AD3d 937, 93 7-938 [2d Dept 2018]; Ashley v Ashley, 139 AD3d 650, 651 [2d Dept 2016]; Lambert v Schreiber, 69 AD3d 904, 905 f2d Dept 2010]). The motion must be made within one vear . - after service of the judgment, with notice of entry, upon the moving party (see CPLR 5015 [a] [I]; Ashley, 139 AD3d at 651]). "The quantum of proof required to prevail [on a motion to vacate a defaull order or judg111e11t] is not as great as is required to oppose sum1nary judg1nent" (Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277, 1277 [4d Dept 2007]; Clark v l'1GMTextiles Indus., 307 AD2d 520, 521 [3d Dept 2003]). As to the first prong, "[t]he determination of what constitutes a reasonable excuse generally lies within the sound discretion of the trial court" (Jian Hua Tan, 163 AD3d at 6 6 of 10 [*FILED: 7] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 938; Herrera v MTA Bus Co., JOO AD3d 962, 963 [2d Dept 2012]; see also Cox v Marshall, 161 AD3d 1140, 1141 [2 Dept 2018]). "At the same time, mere neglect is not a reasonable excuse" (Chowdhury, 185 AD3d at 649 [internal quotation marks omitted]; OneWes/ Bank, FSB v Singer, 153 AD3d 714, 716 [2d Dept. 2017]). Conclusory and non-specific allegations do not suffice (see One West Bank, 153 AD3d at 716). Moreover, 'vhere there is a pattern of default and i1eglect, the negligence of a defendant's former attorney is iI11puted to tl1e defe11dant (see Nevv York Vei11 Ctr., LLC v Dovlarya11, 162 AD3d 1056, 1058 [2d Dept 2018]; Carillon Nursing & Rehabilitation Ctr., LLP v Fox, 118 AD3d 933, 934 [2d Dept 2014]; MRI Enters. v Amanat, 263 AD2d 530, 531 [2d Dept 1999]). A court may exercise its discretion in the interest of justice to excuse delay or del'ault resulting from law office failure upon an application that satisfies the requirements of CPLR 5015 (a) (see CPLR 2005). Excusing defaults resulting from Jaw office tailtire where the claim is supported by a detailed and credible explanation of the default supports tJ1e '"strong public policy of resolving controversies on the n1erits" (Franco Belli Plunibing and Heating and Sons, Inc. v Imperial Developme11t & Const. Corp., 45 AD3d 634, 637 [2d Dept 2007]; see also Kondrotas-Williams v Wes/bridge Enterprises, Inc., 170 AD3d 983, 985 [2d Dept 2019]; U.S. Bank, NA. v Esaghof 178 AD3d 876, 877 [2d Dept 2019]: Cornwall Warehousing, Inc. v Lerner, 17[ AD3d 540, [I st Dept 2019]). Howe·ver, a court improvidently exercises its discretio11 to vacate a default \Vl1ere the allegations o.f law office failure are vague and unsubstantiated or where the conduct of a party's attorney constitutes repeated neglect such that the party's 7 7 of 10 [*FILED: 8] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 continued belief that the attorney was handling the case \Vas not reasonable (see Roussodimou v Zafiriadis, 238 AD2d 568, 568-569 [2d Dept 1997]; Eretz Funding v Shalash Assoc., 266 AD2d 184, 185 [2d Dept 1999]; Rosado v Economy El. Co., 236 AD2d 598, 599 [2d Dept 1997]; Chery v Anthony, 156 AD2d 414, 417 [2d Dept 1989]). }Jere, Dynaserv has provided a detailed and credible explanation for its failure to submit an opposition to plaintiffs motion by August 5, 2020. Specifically, Dynaserv's counsel affir1ns that bis office and residence, located in Westchester County, lost all power, internet, land line and cell phone coverage from August 4, 2020 to August 11, 2020 due lo Tropical Storm Isais. McCauley further submits, and the court takes judicial notice oftl1e fact that the stor1n was severe enough that Governor Cuo1no declared a state of emergency for downstate New York. As such, Dynaserv has provided a reasonable excuse for its defilult in opposing the 111otio11 (see liolne Ins. Co. v Meyers Parking .\),stem, Inc., 186 AD2d 497, 497 [1st Dept 1992] [affirming lower court's opening of default due to defense cuu11sel's (lelay in appearing in court on a 1notio11 due to weatl1er related failure of pubhc transportation]). Additionally. the evidence proffered by Dynaserv demonstrates that it has previously provided plaintiff with images of the two photographs on July 23, 2019. The i111ages were se11t in electronic for1n as attachments to Dynaserv's email. Although the court has not had occasion to review the docu1nents h1 tl1e email attacl1ment, it i1otes that tl1e email shows tl1c documents' tile names~ p11rportcdly created by Dynaserv- as part of a labe!i11g syste1n. Tl1e file na1nes contain dates that the photographs appear to be tak:e11 February 26, 2015 and February 27, 2015 -the two days prior to plaintiffs accident. 8 8 of 10 [*FILED: 9] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 Wl1ile Dynaserv states that it provided a CD an exhibit to tl1e moving papers here purportedly containing the tvvo pl1otograpl1s along with tl1eir metadata, the ct1urt is 11ot in receipt of the CD and therefore 'vas unable to review the CD to determine whether it indeed contains the metadata. Therefore, the court hereby directs the plaintiff to provide another CD containing 1netadata of the two photographs in question to plaintiff a11d to the court vvithin fourteen days of service of this decision with notice of entry. In any event, plaintiff 11as not detnonstrated tl1at sl1e 11as suffered any prejudice with respect to -any late receipt of this discovery. As to the second prong, it is a defendant's burden to establish a "potentiall;1" 1neritorious defense based upon 11onhearsay evidence, such as sworn affidavits, or at least verified pleadings attached to the motion papers (see Global Liberty Ins. Co. v Shahid Mian, MD., P.C., 172 AD3d 1332, 1332-1333 [2d Dept 2019); King v King, 99 AD3d 672, 673 [2d Dept 2012]). Defendants' burden of establishing a potentially meritorious defense is not to be examined under the standards applicable to summary judg111ent (see l-fon. Marl< C. Dillon, Supple111entary Practice Comme11taries, McKinney's Co11s Laws of NY, CPLR C5015:6) [Note: online version]). Here, too, Dynaserv has met its burden of establisl1ing a potentially 111eritt1rious defense by attaching a copy of its verified answer to the amended complaint, dated August 3, 2017. Contrary to plaintiffs contention, Dy11aserv need not submit deposition transcripts or any affidavit of merit to establish a potentially meritorious defense. In sum, defendants have presented both a reasonable excuse for default a11d a potentially meritorious defense that favors vacating the default judgment pursuant to CPLR 5015 (a)(!). 9 9 of 10 [*FILED: 10] KINGS COUNTY CLERK 12/21/2020 03:16 PM NYSCEF DOC. NO. 113 INDEX NO. 506236/2016 RECEIVED NYSCEF: 12/21/2020 Conclusion Accordingly, it is ORDERED that plaintiffs motion (mot. seq. four), for an order pursuant to CPLR 5015 (a) (1), setting aside the court's August 5, 2020 order is granted to the extent that the court sets aside its August 5 1 2020 order. Plaintiffs 1notion to stril<e Dynaserv's ans\ver (111ot. seq. three) is denied it its entirety. The ti111e to file a note .of issue is extended to January 29, 2021; and it is farther ORDERED that Dynaserv is to serve plaintiff and the court with digital copies of the two photographs of the subject bus shelter taken during service visits on February 26, 2015 and February 27, 2015, along with the photographs' metadata, within fourteen days of service of this order witl1 notice of entry. The cou11 has reviewed the parties re1naining contentions and find the1n to be without i11erit. 'fhis constitutes the decision and order of the court. Justice Lawrence Knipe\ 10 10 of 10

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