Kips Bay Endoscopy Ctr., LLC v Meisel
Annotate this CaseDecided on July 21, 2020
Civil Court of the City of New York, New York County
Kips Bay Endoscopy Center, LLC, Plaintiff,
against
Elliott Meisel, Defendant.
CV - 3929/19/NY
RICHARD SOKOLOFF, ESQ.
Attorney for Plaintiff
990 S Second, Suite 1
Ronkonkoma, New York 11779
BRILL & MEISEL
Attorneys for Defendant
845 Third Avenue
New York, New York 10022
Sabrina B. Kraus, J.
BACKGROUND
Plaintiff commenced this action seeking $2046.08 for professional services alleged rendered, but not paid for.
PROCEDURAL HISTORY
The summons and complaint were filed on February 13, 2019.
On May 20, 2019, defendant appeared by counsel and filed an answer asserting a general denial and six affirmative defenses, including failure to state a cause of action, improperly executed complaint, unclean hands, statute of limitations, and bad faith. Defendant also asserts a counterclaim for violation of the Fair Debt Collection Practices Act.
On January 16, 2020, plaintiff filed a notice of trial.
On February 25, 2020, the parties appeared for conference, and the action was adjourned to March 18, 2020.
On March 18, 2020, defendant moved to dismiss the complaint. The motion was adjourned to May 4, 2020. Plaintiff cross-moved for summary judgment on April 15, 2020. The pending motions were brought to the court's attention by a letter from defendant's counsel dated June 1, 2020, regarding the submission of additional papers.
On June 30, 2020, a settlement conference was held with counsel for the parties. The parties were unable to resolve the matter, and on July 20, 2020, the motion was fully briefed and the court reserved decision.
[*2]DISCUSSION
The motions are consolidated herein for disposition.
Defendant's Motion to Dismiss for Failure To State a Cause of Action Is Denied.
CPLR § 3211(a)(7) provides for dismissal by motion when the complaint fails to state a cause of action. On such a motion, the complaint is to be afforded a liberal construction, and the court must accept the facts as alleged as true, and provide plaintiff with every favorable inference. The court need only determine whether the facts, as alleged, fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87—88 ).
The complaint asserts that plaintiffs are licensed doctors, who rendered professional services to defendant in the amount and for the reasonable value of $2,046.08. The complaint further alleges defendant failed to pay for said services. As plead, and liberally construed the complaint adequately sets forth a claim of breach of contract, account stated, and/or a claim for quantum meruit/ unjust enrichment.
While the complaint certainly could have provided additional details, defendant could have requested discovery if he lacked information about the procedure he underwent in 2013. "Whether a plaintiff can ultimately establish its allegations is not part of the calculus (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19)".
Additionally while defendant alleges that plaintiff's counsel did not sign the initial pleading, there is in fact a signature by counsel on the face of the summons. To the extent that the complaint was not also signed off on by counsel the court directs plaintiff's counsel to correct said omission within 30 days y providing a signed complaint in accordance with 22 NYCRR § 130-1.1a.
An Alleged Defective Verification Is Not a Basis to Dismiss for Failure to State a Cause of Action
As part of its 3211(a)(7) motion defendant argues the complaint is defective because it was improperly verified. Specifically, although the complaint and verification are dated November 6, 2018, the verification was not executed or notarized until December 6, 2018.
The court does not find this verification to be defective. Assuming arguendo the verification were defective, it would still not be a basis for dismissal of this action.
CPLR § 3022 provides:
A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.§ 908 of the New York City Civil Court Act provides that verification of pleadings in Civil Court shall be governed by the CPLR, except that informal pleadings need not be verified.
Defendant points to no statutory requirement applicable to this action requiring the complaint to be verified. As such this defense can be considered a "red herring" [ Mamoon v. Dot Net Inc., 135 AD3d 656 (1st Dept, 2016)].
Moreover, defendant did not object to the defective verification with due diligence. The complaint was served on March 4, 2019. The first objection to the verification was contained in defendant's answer. The fact that defendant answered means he did not treat the complaint as a nullity, and the delay of over two months does not constitute due diligence under the law.
While the Court of Appeals has never "employed a specific time period to measure due diligence ( Miller v. Bd. of Assessors, 91 NY2d 82, 86 n.3 )," many courts have held the objection must be raised within 24 hours or waived (see, e.g., Matter of Lentlie v. Egan, 94 AD2d 839, 840, affd. 61 NY2d 874; Matter of Ireland v. Town of Queensbury Zoning Bd. of Appeals, 169 AD2d 73, 76, appeal dismissed 79 NY2d 822 99; Matter of O'Neil v. Kasler, 53 AD2d 310, 315; State of New York v. McMahon, 78 Misc 2d 388, 389), and the Appellate Division , Second Department held waiting fifteen days did not constitute due diligence ( Rozz v. Law Offices of Saul Kobrick, P.C., 134 AD3d 920 (2015).
Based on the foregoing, defendant's motion to dismiss is denied in its entirety.Plaintiff's Cross-motion for Summary Judgment Is Granted Only to the Extent
of Dismissing Defendant's Second Affirmative Defense and Is Otherwise Denied.
Plaintiff cross moves for summary judgment. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], citing Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v. City of New York, 49 NY2d 557, 562; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404)".
CPLR§ 3212(b) provides that a motion for summary judgment shall be supported by an affidavit made by a person having knowledge of the facts, shall recite all the material facts and show that there is no defense to the cause of action. The cross-motion does not meet these requirements. The scant facts alleged are only included in the bare affirmation of counsel who demonstrated no personal knowledge of same. Such an affirmation by counsel is without evidentiary value and thus unavailing ( Zuckerman v. City of New York, 49 NY2d 557, 563).
However, for the reasons stated above, the cross-motion for summary judgment is granted to the extent of dismissing the second affirmative defense based on improper verification.
CONCLUSION
Based on the forgoing, defendant's motion to dismiss is denied and plaintiff's cross- motion for summary judgment is granted only to the extent of dismissing the second affirmative defense.
Furthermore, Plaintiff's counsel is directed to serve and file a signed copy of the complaint in accordance with 22 NYCRR § 130-1.1a within 30 days.
The action is adjourned to October 14, 2020, at 9:30 am, Part 15, Room 949, for trial.
This constitutes the decision and order of this court.
Dated: July 21, 2020
New York, New York
_________________________
Hon. Sabrina B. Kraus
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