Douglin v Shuster 54 LLC
Annotate this CaseDecided on October 1, 2020
Supreme Court, Kings County
Andrea Douglin, Plaintiff,
against
Shuster 54 LLC, 54 ST HOLDINGS LLC, BAH ULSB LLC, CHAMP CONSTRUCTION CORP. and 222-71 REALTY LLC, Defendants.
10356/15
Attorneys for Plaintiff Andrea Douglin
Subin Associates, LLP
150 Broadway
New York, NY 10038
(212) 285-3800
Attorney for Defendant Champ Construction
Jessica A. Clark, Esq.
90 Broad Street, 12th Floor
New York, NY 10004
(212) 683-7100
Attorneys for Defendants 45 LLC, 54 Holdings, and 222-71 Realty LLC
199 Water Street, 16th Floor
New York, NY 10038
(212) 513-7788
BAH ULSB LLC
187 Chrystie Street
New York, NY 10007
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 4, 2019 under motion sequence number eight by Champ Construction Corp. (hereinafter Champ) for an order pursuant to CPLR 3212 granting summary judgment in [*2]favor of Champ on the issue of liability and dismissing the complaint of Andrea Douglin (hereinafter Douglin) and the cross claims of defendant Shuster 54 LLC (hereinafter Shuster) as asserted against it. The motion was not opposed by either the plaintiff or by Shuster.
Notice of motion
Affirmation in support
Affidavit in support
Exhibits A-L
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 9, 2019 under motion sequence number nine by Shuster 54 LLC, 54 ST Holdings LLC and 222-71 Realty LLC (hereinafter collectively the Shuster defendants), for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint as asserted against them.
Notice of motion
Affirmation in support
Affidavit in support
Exhibits A-J
Affirmation in opposition by plaintiff
Exhibits A-L
Reply Affirmation
Exhibit A
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on September 9, 2019 under motion sequence number fourteen by the Shuster defendants for an order: (1) pursuant to CPLR 3025 (b) granting leave to amend their answer to include an affirmative defense of lack of capacity to sue pursuant to CPLR 3211 (a) (3) and thereafter (2) dismissing the complaint as asserted against them pursuant to CPLR 3212. Plaintiff's cross motion filed under motion sequence number sixteen also serves as opposition to this motion by the Shuster defendants.
Notice of motion
Affirmation in support
Affidavit in support
Exhibits A-F
Notice of cross motion by the plaintiff
Affirmation in support
Affidavit in support
Exhibits A-B
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion filed on January 7, 2020 under motion sequence number sixteen by Douglin seeking an order: (1) denying the motion filed by the Shuster defendants on September 9, 2019 under motion sequence number fourteen, and (2) denying the motion filed by Champ on October [*3]2, 2019 under motion sequence number fifteen, or in the alternative, (3) granting Douglin, among other things, leave to amend the complaint to substitute the plaintiff with a certain Bankruptcy trustee pursuant to CPLR 1021 nunc pro tunc.
Notice of cross motion
Affirmation in support
Affidavit in support
Exhibits A-B
BACKGROUND
On or about August 13, 2015, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated September 17, 2015, Champ joined issue. By verified answer dated February 29, 2016, the Shuster defendants joined issue. Defendant Bah Ulsb LLC did not answer the verified complaint. On April 4, 2018, plaintiff filed a note of issue. By Court order dated July 13, 2018, the parties time to file summary judgment motion was extended to January 4, 2019.
The amended verified complaint and the plaintiff's verified bill of particulars allege the following salient facts. On May 30, 2015, at around 3:00 A.M., the plaintiff was walking on the sidewalk abutting the property known as 351-355 West 54th Street. The property was owned, managed and maintained by the defendants. On that date and place she was caused to trip and fall (hereinafter the accident) on a dangerous and defective condition. The dangerous and defective condition was caused by the negligence of the defendants by, among other things, failing to maintain the area in a reasonably safe condition. The accident caused the plaintiff to suffer serious physical injuries.
By notice of motion filed on October 2, 2019 under motion sequence number fifteen, Champ moved for an order pursuant to CPLR 3025 (b) granting leave to amend their answer to include an affirmative defense of lack of capacity to sue pursuant to CPLR 3211 (a) (3) and to then dismissing the complaint as asserted against it pursuant to CPLR 3212. For the reasons set forth below the motion was rendered moot.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A moving party must address the specific factual allegations set forth in the complaint and the bill of particulars (Parrilla v Saphire, 149 AD3d 856 [2nd Dept 2017] citing, Terranova v Finklea, 45 AD3d 572 [2nd Dept 2007]).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 [*4]NY2d at 324).
Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).
CPLR 3212 Motion by Champ Construction Corp.
Champ has moved for an order pursuant to CPLR 3212 dismissing the complaint of Douglin and the cross claims that defendant Shuster asserted against it. Neither the plaintiff nor defendant Shuster opposed the motion. Consequently, the complaint and the cross claims asserted by Shuster against Champ are dismissed as abandoned by their failure to oppose Champ's motion to dismiss them (see Elam v Ryder Sys., Inc., 176 AD3d 675, 676 [2nd Dept 2019], citing Pita v Roosevelt Union Free Sch. Dist., 156 AD3d 833, 835 [2nd Dept 2017]; see also Kronick v L.P. Thebault Co., 70 AD3d 648, 649 [2nd Dept 2010], citing Genovese v Gambino, 309 AD2d 832, 833 [2nd Dept 2003]).
CPLR 3212 Motion by the Shuster Defendants
A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting its premises unless the landowner (1) affirmatively created the defective condition, (2) negligently made repairs thereto, (3) created the defect through special use, or (4) violated a statute or ordinance which expressly imposes liability on it for failure to maintain and repair the sidewalk (Brandes v Inc. Vill. of Lindenhurst, 8 AD3d 315, 315 [2nd Dept 2004])
The Shuster defendants have moved for an order pursuant to CPLR 3212 dismissing the complaint of Douglin as asserted against them. In support of the motion the Shuster defendants provided an affirmation of their counsel, the pleadings, and the plaintiff's bill of particulars and deposition transcript. The affirmation of the Shuster defendants counsel does not aver or demonstrate personal knowledge of any of the allegations of fact made in the plaintiff's verified complaint. It therefore has no probative or evidentiary significance (United Specialty Ins. v Columbia Cas. Co., 186 AD3d 650 [2nd Dept 2020], citing Currie v Wilhouski, 93 AD3d 816, 817 [2nd Dept 2012]).
The Shuster defendants did not offer any sworn testimony from anyone with personal knowledge to aver that they lacked actual or constructive notice of the allegedly dangerous condition. Nor did they offer any evidence to show that they did not cause or create the allegedly dangerous condition. The only probative testimony they offered was the deposition testimony of the plaintiff. The plaintiff's testimony did not eliminate all material issues of fact regarding the Shuster defendants' liability for causing the subject accident. Accordingly, the Shuster defendants' motion for summary judgment is denied without regard to the sufficiency of the plaintiff's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
CPLR 3025 (b) Motion by the Shuster Defendants
By notice of motion filed on September 9, 2019, the Shuster defendants have moved for an order pursuant to CPLR 3025 (b) granting them leave to amend their joint answer to include an affirmative defense of lack of capacity to sue pursuant to CPLR 3211 (a) (3) and thereafter (2) dismissing the complaint as asserted against it pursuant to CPLR 3212.
The following facts are undisputed. The Shuster defendants originally interposed a joint verified answer to the amended verified complaint dated February 29, 2016. On April 4, 2018, the [*5]plaintiff filed a note of issue. On January 9, 2019, the Shuster defendants filed a motion for summary judgment dismissing the complaint.
The Shuster defendants instant motion is made more than three years after the date they originally interposed their verified answer. Their motion is made more than nine months after the plaintiff filed a note of issue. Their motion, the instant motion, more than eight months after they had already made an earlier motion to summarily dismiss the complaint on other grounds.
Among the grounds they have asserted in the instant motion is the allegation that the plaintiff has filed multiple bankruptcy petitions and has never included the instant action as a potential asset in the most recent bankruptcy filing. They further allege that the first bankruptcy petition was filed on August 11, 2015, one week prior to the commencement of the instant action.
While leave to amend a pleading shall be freely granted (see CPLR 3025 [b]), a motion for leave to amend is committed to the broad discretion of the trial court (Ravnikar v Skyline Credit-Ride, Inc., 79 AD3d 1118, 1119-20 [2nd Dept 2010] and the resulting determination will not lightly be set aside (Beuschel v Malm, 114 AD2d 569, 569 [3rd Dept 1985]).
In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether a reasonable excuse for the delay was offered (Am. Builders & Contractors Supply Co. v US Allegro, Inc., 177 AD3d 836, 838 [2nd Dept 2019]). Where, however, an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious (Morand v Farmers New Century Ins. Co., 171 AD3d 1167, 1167 [2nd Dept 2019]).
The Shuster defendants did not explain when and how they came to learn the facts pertaining to the alleged bankruptcy filings. They have also offered no explanation for the delay in making the instant motion. One of the alleged facts in support of the motion was the claim that the plaintiff filed a bankruptcy petition in 2015, a week before the instant action was commenced. Although this alleged fact occurred nearly four years ago, the Shuster defendants waited more than three years after they interposed their original verified answer to make the instant motion. They also waited until after the plaintiff's deposition had been concluded and after a note of issue had been filed. They also waited until after they made an earlier motion for summary judgment to dismiss the complaint on other grounds. In light of the Shuster defendants unreasonable and inexplicable delay, the motion to amend is denied (see Van Damme v Gelber, 111 AD3d 408, 409-10 [1st Dept 2013]; see also Ravnikar, 79 AD3d at 1119-20).
CPLR 3025 (b) Motion by Champ Construction Corp.
Similar to the Shuster defendants, Champ has also moved, by notice of motion filed on October 2, 2019, for an order pursuant to CPLR 3025 (b) granting it leave to amend its answer to include an affirmative defense of lack of capacity to sue and then dismissal of the complaint. The plaintiff's failure to oppose the earlier motion by Champ, filed under motion sequence number eight, has resulted in the dismissal of the complaint as asserted against it by the plaintiff's abandonment. Consequently, this motion by Champ under motion sequence number fourteen is rendered moot.
Plaintiff's Cross Motion
By cross motion filed on January 7, 2020, under motion sequence number sixteen, [*6]plaintiff Douglin seeks an order denying the motion filed by the Shuster defendants on September 9, 2019, under motion sequence number fourteen. Plaintiff also seeks an order denying the motion filed by Champ on October 2, 2019, under motion sequence number fifteen. If the Court does not deny these motions, plaintiff seeks in the alternative, among other things, an order granting plaintiff leave to amend the complaint pursuant to CPLR 1021 to substitute the plaintiff with a certain bankruptcy trustee nunc pro tunc.
The Court has denied the motion by the Shuster defendants to dismiss the complaint filed under motion sequence number fourteen. The Court has also denied as moot the motion filed by Champ under motion sequence fifteen. Consequently, the Court does not reach the alternative relief sought by the plaintiff.
CONCLUSION
The motion by Champ Construction Corp. for an order pursuant to CPLR 3212 granting summary judgment in its favor on the issue of liability and dismissing the complaint of Andrea Douglin and the cross claims of defendant Shuster 54 LLC as asserted against it is granted.
The motion by Shuster 54 LLC, 54 ST Holdings LLC and 222-71 Realty LLC for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint of Andrea Douglin is denied.
The motion by Shuster 54 LLC, 54 ST Holdings LLC and 22271 Realty LLC for an order pursuant to CPLR 3025 (b) granting leave to amend their answer to include an affirmative defense of lack of capacity to sue pursuant to CPLR 3211(a) (3) and thereafter dismissing the complaint as asserted against them pursuant to CPLR 3212 is denied.
The motion by Champ Construction Corp. for an order pursuant to CPLR 3025 (b) granting leave to amend its answer to include an affirmative defense of lack of capacity to sue pursuant to CPLR 3211 (a) (3) and thereafter dismissing the complaint as asserted against it pursuant to CPLR 3212 is denied as moot.
The branch of the cross motion of Andrea Douglin for an order denying the motion filed by the by Shuster 54 LLC, 54 ST Holdings LLC and 22271 Realty LLC on September 9, 2019 under motion sequence number fourteen is granted.
The branch of the cross motion of Andrea Douglin for an order denying the motion filed by Champ Construction Corp. on October 2, 2019 under motion sequence number fifteen is granted.
The foregoing constitutes the decision and order of this Court.
ENTER
_________________________________
J.S.C.
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