Mealy v Atlantic Brookland, LLC

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Mealy v Atlantic Brookland, LLC 2021 NY Slip Op 30505(U) February 18, 2021 Supreme Court, Kings County Docket Number: 514600/18 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. [* 1] INDEX NO. 514600/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/22/2021 At an !AS Tenn, Part 57 of the Supre1ne Court of the State of New York, held in and for the County of Kings, at tl1e Courthouse, at Civic Center, Brooklyn, New York, on the 1gth day of February 2021. PRE SENT: HON. LAWREN CE KNIPEL, Justice. - - - - - -- - - -- - - - - - - --- - - - - - - - - -- - - - --- -X JOSEPH MEALY, Plaintiff, Index No. 514600/18 - against ATLANTIC BROOKLAND, LLC, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X NYSCEF Doc Nos. 1 Tl1e followi11g e-filed papers read herein: Notice ofMotio11fOrder to Show Cause/ Petition/Cross Motion and Affidavits (Affirn1ations) 26-37 Annexed~--- Opposi11g Affidavits (Affirmations) _ _ __ 39-40 Reply Affidavits (Affirmations), _ _ _ __ 43 Upon the foregoing papers m this labor law action, plaintiff; Joseph Mealy (plaintiff) moves (in motion sequence [mot. seq.] two) for reargument and reconsideratio11 of this court's October 21, 2020 inot. seq. one order, which declined to strilce defendant's answer and extended the ti1ne to complete discovery and file the note of issue. Plaintiff, in his complaint, filed July 17, 2018 (see NYSCEF Doc No. I), alleges that 11e was seriously injured after stepping aside to allow a truck to pass ai1d falling into a pit at a work site. Defendant, Atlantic Brookland, LLC (defondant), the general 1 New York State Courts Electronic Fili11g Docume11t Nun1bcrs. 1 of 5 [* 2] INDEX NO. 514600/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/22/2021 co11tractor on that job filed its answer containing 15 affirmative defenses on December 21, 2018, but no co1nbined discovery de1nands were served with the answer (see NYSCEF Doc No. 4) . A preliminary conference was held on May 23, 2019, defendant failed to appear and an order (see NYSCEF Doc Nos. 7, 30, annexed as exhibit C to plaintiffs moving pa1)ers), prepared by plaintiff on defendant's default, was entered. The order contained a written-in po1tion that directed defendant to provide a bill of particulars as to affinnative defenses within 45 days of tl1e date of the preli111inary conference order or date of de1nand, vvhichever was later. Court filings contain no indication that plaintiff inade a de1nand for a bill of particulars or for any otl1er discovery. The co1npleted, preprinted preli1ninary conference form requires plaintiff to provide autl1orizations as to his inedical treat1nents for the accide11t, both parties to provide witness infor1nation and that defendant disclose insurance policies coveri11g the clai1n. Neither })arty has-tnoved to co1npel respo11ses to the prelitninary conference order. Defe11dant thereafter failed to appear for hvo compliance conferences, the first on September 9, 2019 (see NYSCEF Doc Nos. 8, 31, annexed as exhibit D to plaintiff's moving papers) and the second on January 13, 2020 (see NYSCEF Doc Nos. 9, 32, atmexed as exhibit E to plaintiffs moving papers). Both compliance conference orders, prepared by plaintiff on defendant's default, scheduled depositions and defense medical exan1inations and provided for postdeposition den1ands. outstanding discovery responses due. Neither sets forth any Tl1e co1npleted, preprinted fortns directed botl1 parties to respond to any outstandi11g de1nands, but no demands were made. 2 2 of 5 [* 3] INDEX NO. 514600/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/22/2021 Plaintiff sent a letter dated March 16, 2020, the eve of the "New York Pause Period" (Pause Period), to defendant (see NYSCEF Doc No. 19), both questioning who represented it, as the attorneys who had answered on its behalf had advised that they no longer represented defe11dant, and also seel(ing insurance information. Eventually, plaintiff filed a motion on September 23, 2020, mot seq. one, to strike defendant's answer (see NYSCEF Doc Nos. 11-12) for defendant's failure to respond to the March 16, 2020 letter, sent six 1nonths earlier, to proceed with discovery and to properly substitute counsel. The good faith affinnation (see NYSCEF Doc No. 13) cites only to the March 16, 2020 letter as plaintiffs good faith effort to resoJve the issues before inaking the 1notion. Defendant's current counsel filed a notice of appearance dated October 20, 2020 (see NYSCEF Doc No. 21, 35, annexed as exhibit H to plaintiff's moving papers), and the following day, October 21, 2021, the return date of the motion, defendant filed opposition to the motion (see NYSCDEF Doc No. 23) with the insurance information requested in plaintiff's March 16 letter (see NYSCEF Doc No. 24). Defendant urged that, having filed a notice of appearance on behalf of defendant, having responded to both ite1ns set fortl1 i11 plaintiffs letter a11d having provided insura11ce infor1nation, the 1notion to strike should be denied. The court's October 21, 2020 order (see NYSCEF Doc No. 25, 37, annexed as exhibit J to plaintiff's moving papers) accordingly declined to strike defendant's answer, and, in the interests of justice a11d in providing the opportunity for the case to be deter1nined upon its tnerits, extended the time for the parties to co1nplete discovery. 3 3 of 5 [* 4] INDEX NO. 514600/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/22/2021 Plaintif1' now seeks reconsideration of that order and asserts tl1at the court erred in not striking the answer either for defendant's failure to properly substitute counsel during the year and a half that at1sweri11g counsel allegedly was not representing defendant or for defendant's failttre to rnove for\vard with discovery. However, it 1nust be noted in this regard that plaintiff did t1ot 1nove to strike at all)' ti1ne du'e to defendant's 11onappearance at tlrree separate court co11ferences, did not sub1nit any discovery demands nor a demand for a bill of pa1iiculars as to affinnative defenses nor any 1notions to compel defendant to take depositions, or otl1envise seek to proceed. It appears_ that plaintiff allowed this matter to languish until March 2020, more than a year and a half from the date of the preliiniI1ary confere11ce. Whe11 plainti±T 's counsel reached out to defendant's cou11sel, and first discovered that such counsel no longer reptesented defendant, tl1at effort coi11cided with the eve of the Pause Period. Thereafter, plaintift"'s first motion in this case sought to strike defendant's answer, and occt1rred without any prior good faith atte1npt to s_et a discovery schedule or comply witl1 prior scheduling orders. Ordinarily, the absence of a proper affir111atio11 setti11g forth the efforts to resolve the issues pursuant to Uniform Rules for Trial Courts (22 NYCCRR) § 202.7 would, on its own, dootn t11e 111otion, but here, the defendant is a corporation and ca11not appear without counsel. As a practical 111atter, plaintiff could not resolve the issues in tl1e motion until defendant obtained counsel, but plaintiff did not learn tl1at defenda11t was unrepresented until a year and a 11alf after plaintiffs ovvn inactivity on this case. Plaintiff has not established a good faith basis for reconsideration of this court's order nor de1nonstrated a basis to strike the answer at this juncture. Neither pa1iy 1nade 4 4 of 5 [* 5] INDEX NO. 514600/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/22/2021 any effort to move this case forward, sucl1 as noticing depositions or 1noving to compel co1npliance with prior scheduling orders before the inotion to stril(e. Nevertheless, it is ORDERED that defendant shall file a proper substitution of attorney forthwith; and it is furtl1er ORDERED that tl1e plaintiffs 1notion, irtot. seq. two, is otherwise denied. ·rhis constitutes tl1e decision a11d order oftl1e court. ENTE H N. LAWRENCE KNIPEL ADMINISTRATIVE JUDGE 5 5 of 5

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