Vonweken v Oglesby

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Vonweken v Oglesby 2021 NY Slip Op 30094(U) January 5, 2021 Supreme Court, Kings County Docket Number: 515308/16 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 01/12/2021 12:20 PM NYSCEF DOC. NO. 131 INDEX NO. 515308/2016 RECEIVED NYSCEF: 01/12/2021 At an IAS Ter1n, f>art 57 of the Supretne Cottrt of the State of New York, held in and for the County of Kings, at the Courthottse, at Civic Center, Brooklyn, New York, on the 5th day of January, 2021 PRESENT: I \ON. LAWRENCE KNIPEL, Jt1stice. - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - -X JCJll\; VL)N\VEJ(E\i Jnd i)ESJREE CURLE\' 1 \ 0'.\J\VEKE~. Plaintiffs, - against - Index No. 515308/16 Cc)NSTRuc·r1c)N Si-.RVICES !0.iC. and MADISON 30 31 OWNER LLC, C'HRISTC)f'I !ER OciLFSBY, PrLKU Defendants. - -- - - - - - - - -- - - - - - -- -- - - - - -- - - - - - - - -X ·i-hc Jl.)llo\ving c-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Ar!idavits {:-'\ffirn1ations) Annexed. _ _ _ __ 113-124 ()ppositiun A/Tidavits (1\llirmations) _ _ __ 126 l~eply 129 .1\C!idavits (Affirn1ations) _ _ _ _ __ Upon the roregoing papers in this action for assault and battery, plaintiffs John Von\veken and l)csirce (~urlcy Vonvveken (collectively, plaintiffs) 1nove (in 1notion sequence [inot. seq.-] scv cn) for an order vacating this court's July 28_. 2020 decision and 1 order. by· tvhich lhis c·ourt granted defendant's unopposed discovery motion, struck the con1plaint and dis1nissed the action (Dis1nissal Order). ()n August 31, 2016, plaintiffs co1nmenccd this action by filing a su1n111ons and a verilied. con1plaint alleging that plaintiff John Vonweken vvas "wrongfully and 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 01/12/2021 12:20 PM NYSCEF DOC. NO. 131 INDEX NO. 515308/2016 RECEIVED NYSCEF: 01/12/2021 maliciously attacked ... " by defondant Christopher Oglesby (Oglesby) on January 22, 2016 at !32 Madison Avenue in New York, a construction site owned by defendant Madison 30 31 Owner LLC (Madison) while Oglesby was employed by defendant Pilku ('.onstruction Services Inc. (f->iJku). On December 15, 2016, Madison answered the complaint. On January II, 2017, Pilku ans\vered the co1nplaint. Oglesby failed to answer or otherwise respond to the co1np!ai11L 'J'hereaf-tcr. discovery ensued. On September 12. 2019. after a conforence in the Final Compliance Part (FCP), the court (Colon. J.) issued a Final Pre-Note Order which directed, among other things, that the continued dcpo_sition of' plaintiffs be held on or before December 13, 2019. On February 19, 2020, alter another FCP conference, the court (Colon, J.) issued another Final Pre-Note Order which directed, among other things, that "[a] farther EBT or plaintiff [to be held on or before] 3 - 12 - 2020." On March 13. 2020, defendant MadiS{)ll 1noved for a11 order striking the co1nplaint !Or John Von\vcken·s "\Vj]Jfu! and contu1nacious failure to appear for l1is court-ordered deposition:· or, alter11ativc!y, co1npelling hi1n io appear for a depositio11. On May 19. 2020. counsel for defendant Madison filed a letter to the court (Jii11cncz-Salta, J.) requesting that Madison's unopposed discovery tnotion either be decn1ed .. fully sub1nitted'' or. alternative!)', that 1'the Court set a new return date for the \ll()tion as well as a briefing schedule for the filing of opposition and reply papers." 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 01/12/2021 12:20 PM NYSCEF DOC. NO. 131 INDEX NO. 515308/2016 RECEIVED NYSCEF: 01/12/2021 Plaintif'fs' Ct)Unscl, in response, also tiled a May 19, 2020 letter to the court (JimenezSalta, J.) advising that: "In response to Defense Counsel's correspondence, please be advised that Plaintiff has every intention to appear for depositibns. In fact, Plaintiffs have already appeared for a deposition, ho\Ve\1Cr, in light of the pending cri1ninal case inVt)lving Defendant Oglesby, all parties agreed to cancel and reschedule. ·'JC the parties cannot a1nicably agree on a date for det)OSitions, then Plaintiff does intend to oppose Defendant MADISON 30 31 OWNER LLC's motion to strike .... " [)espitc the parties· request to .Tt1stice Ji1nenez-Salta for a briefing schedule, by the July 28, 2020 Disn1issal Order. this court granted defendant's 1notion, on default, and held that "[b]ased upon plaintiffs failure to comply with court orders dated September 12. 2019 and February 19, 2020, plaintiffs [complaint] is hereby stricken and the action is hereby distnisscd." Plaintiffs nO\V 1no\.re to vacate the Dis1nissal Order based on their compliance with de/'endants' outstanding discovery requests and the prior discovery orders and the parties' correspondence lo Justice Jin1e11ez-Salta requesting a briefing schedule f{Jr the motion. Plai'ntif!:'>· counsel explains that "plaintiffs intention was to resolve the discovery issue so that the lllt)tion \Vould be withdravvn. In the alternative, the parties intended to adjourn the 1notitJn and create a briefing schedule for opposition and reply, if necessary." Plaintiffs· counsel asserts that ·'[i]n ligl1t of the fact that tl1e parties vvere attempting to an1icabl) resolve the pending discovery 111otion tl1e prior Order should be 1noditied or 1 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 01/12/2021 12:20 PM NYSCEF DOC. NO. 131 INDEX NO. 515308/2016 RECEIVED NYSCEF: 01/12/2021 vacated." Plaintiff$ sub1nit copies o-f the verified co1nplaint and tl1eir verified bills of partictllars to establish that thC)' l1ave a n1eritorious claiin for assault and battery. Madison, in <)P]Josition, asserts that plaintiffs' 1notion to vacate the Dis1nissal Order sl1ould be denied ''on procedural grounds" because "the motion does not contain any A !'!1davits dcn1onstrating that this action has 111erit.'' Madison's counsel, however, . ackno\vlcdges that '·[p]laintiff is correct that the parties were in the process of \Vorl(ing out a briefing schedule at the time the Court entered the instant [Dismissal] Order." lfthe f)is1nissal Order is vacated, Madison requests an order compelling plaintiff John Von\veken to appear for his continued deposition on a date certain. It is \vel!-settled that ''[aJ trial court has the discretion to grant a 1notion to vacate its O\Vll \lrdcr in tl1c interest of justice" (Arn1strong Trading, Ltd. V MBM Enterprises, 29 AD3d 835. 836 [2006]). Under the circumstances presented here, where the parties requested a bricflng schedule for Madison's discovel)' 1notion before the Dis1nissa] Order \Vas issued, an order \.racating the Dis1nissal Order is warranted in the interest of justice. I.;-urther1nore, plaintiffs l1ave indicated that they have every intention of expeditiously tnoving f<ln.vard \Vith the continued deposition of John Vonweken, especially since the crin1inal action against Oglesby has concluded. Acc<lrdingly, it is hereby ORDERED that plaintiffs' motion (in mot. seq. seven) is granted, this court's July 28. 2020 l)is1niss·a1 ()rdcr is hereby vacated, the action is restored to active status a11d 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 01/12/2021 12:20 PM NYSCEF DOC. NO. 131 INDEX NO. 515308/2016 RECEIVED NYSCEF: 01/12/2021 John Von\veken is hereby directed to appear for his continued deposition on or before February I 6. 202 I. 'rhis constitutes the decision and_ order of the court. ENTER, J.~ 5 5 of 5

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