Maddock v Haines

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Maddock v Haines 2021 NY Slip Op 30807(U) February 22, 2021 Supreme Court, Suffolk County Docket Number: 601995/2017 Judge: Carmen Victoria St. George 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] SUFFOLK COUNTY CLERK 02/22/2021 12: 52 PM) NYSCEF DOC. NO. 468 INDEX NO. 601995/2017 RECEIVED NYSCEF: 02/22/2021 SUPREME COURT - ST ATE OF NEW YORK TRIAL TERM, PART 56 SUFFOLK COUNTY PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court RICHARD MADDOCK and BARBARA MADDOCK, Index No. 601995/17 Plaintiffs, Motion Seq: 010 MG 011 MG 012 MG -against- Decision/Order DENISE HAINES, as ADMINISTRATOR OF THE ESTATE OF MICHAEL HAINES, MICHAEL R. HAINES AGENCY, INC., SCDS ENTERPRISES, LLC, AKG2, INC., COOL-TEMP MECHANICAL, INC., AMERICAN PLUMBING SOLUTIONS, INC., PETER ALBINSKI, R.A., LLOYD HOWELL, P.E., JOSEPH LAUTERBORN, BUILT CONSULTING CORP., and WALTER GIGLIO, Defendants. The following electronically-filed papers were read upon this motion: Notice of Motion/Order to Show Cause ... ..... .. . . Answering Papers ............ .. . ... .... ................. . Reply ................ .......... .............. .. ........... .. Briefs: Plaintiffs/Petitioner's ................ ....... . Defendant' s/Respondent's .......... ..... . . . 292-342; 352-357; 362-366 367-452 458-461; 462; 466-467 Submitted for this Court ' s consideration are three motions for renewal and reargument made by plaintiffs and defendants Cool-Temp Mechanical, American Plumbing Solutions and Joseph Lauterborn (Motion Sequences 10, 11 and 12). Sequences 11 and 12 made by CoolTemp and American Plumbing Solutions adopt and incorporate by reference the arguments made by plaintiffs, together with all supporting exhibits submitted in connection with Sequence I 0. These motions are made as a result of this Court's Decision and Order dated May 7, 2020 that granted defendant SCDS ' s dismissal motion identified as Motion Sequence 001. The Haines and 1 of 6 [*[FILED: 2] SUFFOLK COUNTY CLERK 02/22/2021 12: 52 NYSCEF DOC. NO. 468 PMl INDEX NO. 601995/2017 RECEIVED NYSCEF: 02/22/2021 AKG2, Inc. defendants submit papers in support of Motion Sequence l 0. SCDS o pposes Sequences l 0, 11 and 12. Background This action was commenced on February l , 20 17. On April 10, 2017, defendant SCDS filed its pre-answer motion to dismiss the compla int. An initial status conference was held on or about October 24, 201 7, and this action came before four different Justices of this Court be fore thi s matter was re-assigned to this Court on September 24, 20 19 (Administrative Order 70- 19). The plaintiffs filed an amended complaint on April 2, 201 9, and SC DS j oined issue to the amended complaint on or about April 22, 201 9. SCDS did not request or move to have its twoyear-old pending dismissal motion applied to the amended complaint, nor did SCDS move against the amended complaint. After having am assed a lengthy hi story, this action, along with SC DS's pre-answer motion to dismiss (Motion Sequence 00 1), was transferreq to thi s Court. Unfo rtunately, some critical portions of the hi story of this pending matter were not made known to this Court until after the Court issued its May 7, 2020 Decision and Order. Specifically, the events of March 18, 2019 and May 2 1, 201 9, including on and off-the -record discussions between counsel for the parties and the Court (Kevins, J.), ultimately led to the motion sequences now under consideration by thi s Court (Sequences 10, 11 and 12). This Court notes that when it issued its May 7, 2020 Decision and Order, the Decision and O rder was met w ith an almost immediate flurry of communications expressing a level of what can best be characteri zed as surpri se, given that the parties, including SCDS, were actually engaged in taking plaintiff Richard Maddock's deposition when the Decision and Order was uploaded to YSCEF. Thi s Co urt has come to learn that extensive discovery had been exchanged by the parties, including by SCDS , during the lengthy time period preceding this Court's issuance of its May 7, 2020 Decision and Order, despite SCDS's pending di smissal motion (Seque nce 00 1). In an effort to unravel the procedu ral history of thi s matter, this Court entertained inperson oral argument on September 23, 2020. Counsel for the parti es discussed their respecti ve recollections of a conference held in Chambers w ith the Court (Kevins, J.) in March 201 9, and all counsel who were present before thi s Court on September 23 2020 agreed that the discussions held with this Court, which were placed on the record, could be considered as part of the total record. Virtual oral argument of the pending motions was continued on November 25, 2020, which is also part of the record. At the Court ' s request, the minutes of the September 23, 2020 and November 25 , 2020 proceedings were uploaded to NYSCEF. Standard for Renewal Pursuant to CPLR § 2221 (e) CPLR § 222 1 (e) provides in pertinent part that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination . . . and shall contain reasonable justification for the fa ilure to present such facts on the prior motion ." 2 2 of 6 [*~ILED: 3] SUFFOLK COUNTY CLERK 02/22/2021 12:52 PMJ NYSCEF DOC. NO. 468 INDEX NO. 601995/2017 RECEIVED NYSCEF: 02/22/2021 While a motion for leave to renew is granted sparingly, and it is "not a seco nd chance freely given to parties who have not exercised due diligence in making their first factual presentation" (see Sobin v. Tylutki, 59 AD3d 701 , 702 (2d Dept 2009), quoting Rubinstein v. Goldman, 225 AD2d 328, 329 [1st Dept l 996]; see also Renna v. Gullo, 19 AD3d 472, 473 [2d Dept 2005]; Matter of Beiny, 132 AD2d l 90 [I5 1 Dept 1987], Iv dismissed 71 NY2d 994 [1 988]), "' [t]his requirement. .. is a flexible one and the court, in its discretion, may also grant renewal in the interest of justice, upon facts which were known to the movant at the time the original motion was made ' "( Vita v. Alston Signaling, Inc. , 308 AD2d 582, 582 (2d Dept 2003] citing Tishman Construction Corporation of New York v. City of New York , 280 AD2d 374, 376 [1 51 Dept 200 I] ; see also Hu ma v. Patel, 68 AD3d 821 , 822 [2d Dept 2009] ; Kennedy v. Coughlin , 172 AD2d 666 [2d Dept 1991 ]; Hantz v. Fishman , 155 AD2d 415 [2d Dept 19898]; Blumstein v. Menaldino , 144 AD2d 4 12 [2d Dept 1988] ; Patterson v. Town of Hempstead, 104 AD2d 975 [2d Dept 1984]; Esa v. New York Property Insurance Underwriting Association, 89 AD2d 865 [2d Dept l 982]). Discussion The conference held in Chambers (Kevins, J.) on March 18, 20 l 9 and the subsequent conference placed on the record, also on March 18, 2019, both occurred after SCDS ' s dismissal motion (Sequence 00 l ) had been full y briefed. The last submi ssions concerning that motion were filed in NYSCEF on March l , 2019 (sur-reply and opposition thereto), although Sequence 001 had been marked fully submitted as of August 16 or 17, 2017. Accordingly, the March 18, 20 19 minutes and the more recent inquiry made by this Court on September 23 , 2020 as to what was discussed in chambers with Justice Kevins constitute "new facts" that could not have been presented upon the prior motion. Notably , the March 18, 20 19 minutes were never uploaded to NYSCEF prior to this Court ' s issuance of its May 7, 2020 Decision and Order. The substance of what occurred prior to this Court' s granting of SCDS's motion would have changed this Court' s detem1ination had the Court been aware of such facts. The March 18, 20 19 minutes submitted upon the renewal motions unequivocally establi sh that Justice Kevins vacated the stay of discovery that had been in place since SCDS filed its pre-answer motion for dismissal. Justice Kevins also stated that, a read of the papers also had me make the determination that I' m also going to convert the motion to dismiss to a summary judgment motion , and I' m giving everybody notice at this time. You' ll get further notice as well with our motion decision. Add iti onally, I' ve also given all the counsel my ideas of where I thought this case was going after reading all the papers, and it's my understanding that counsel is going to enter into a discovery schedule, as well as talk with their clients regarding whether or not they can mediate this case while we' re doing discovery ... Following these remarks, Justice Kevins placed on the record that she signed the Preliminary Conference Stipulation and Order and adjourned the case to May 2I , 2019. Although timely decisions on the four pending motions, including SCDS's motion, were promised, SCDS's motion was not decided until this Court rendered its decision on May 7, 2020, and without the benefit of knowing what had transpired before Justice Kevins. 3 3 of 6 [*[FILED: 4] SUFFOLK COUNTY CLERK 02/22/2021 12: 52 PMJ INDE X NO. 601995/2017 RECEIVED NYSCEF: 02/22/2021 NYSCEF DOC . NO. 4 68 Insofar as the March 18, 20 19 Chambers conference that took place with counsel and Justice Kevins immediately preceding Justice Kevins' on-the-record statements, this Court requested that, on September 23 , 2020, counsels state their recollections of that Chambers conference. In addition to counsel for plaintiffs and SCDS, who were both present on March 18, 2019, the other counsel relied upon the notes contained in their respective files that were made at the time of the conference, and one defendant relied on the affirmation of counsel who was present at the March 18, 20 19 conference. The minutes adduced on September 23, 2020 reveal that all counsel, except counsel for SCDS, recall ed Justice Kevins stating that she intended to deny SCDS's dismissal motion because it was premature, since there were factua l issues that she identified when she read the submitted papers. Further according to counsels ' recollections, Justice Kevins stated that she was going to convert the dismissal motion to one for summary judgment and then hold the motion in abeyance until the completion of discovery. Plaintiffs counsel recalled that Justice Kevins inquired of SCDS 's counsel as to whether SCDS preferred a ruling on the record dismissing the motion or a written decision, and that SCDS's counsel requested that the court issue a written deci sion. On September 23 , 2020, SCDS's counsel disputed the recollections of the other counsel , but allowed that Justice Kevins said, 'I'm probably going to deny the motion." SCDS's counsel recalled that Justice Kevins asked him if he would like the motion converted to one for summary judgment, but that he answered, " no ;" he wanted a decision on the dismissal motion. The next issue discussed at the September 23, 2020 proceeding is what occurred on May 21 , 2019, which was the next appearance date after March 18, 20 19. There is a so-ordered stipulation dated May 21 , 20 19 (NYSCEF Doc # 188), issued by Justice Kev ins, which reads, in pertinent part, that " SCDS's motion to dismiss the complaint Motion Sequence No. I marked submitted as a 3211 motion, not converted to a 3212 motion.'· It is undisputed that all counsel present, including counsel for the plainti ffs and SCDS, signed the so-ordered stipulation. This so-ordered stipulation contravenes Justice Kevins' statement on the March 18, 2019 record that she intended to convert the dismissal motion into a summary judgment motion and then hold the summary judgment motion in abeyance until the completion of discovery. In any event, this so-ordered stipulation as to SCDS's pre-answer dismissal motion (Sequence 001) was issued after plaintiffs amended their complaint on Apri l 2, 2019, and after SCDS joined issue by answering the amended summons and complaint on Apri l 22, 20 19. Nowhere in the so-ordered stipulation, or anywhere else in the record of this case, is there any statement/request that the preanswer motion to dismiss be considered vis a vis the amended complaint. An amended complaint supersedes the original pleading and becomes the only complaint in the action (Mendrzycki v. Criccltio, 58 AD3d 171 , 174 (2d Dept 2008]). It is well settled that " the filing of(an] amended verified complaint d(oes] not render (a] defendants' motion to dismiss the original verified complaint academic [where] the amended verified complaint d(oes] not substantively alter the [causes of action all eged in the original complaint]" (EDP Hosp. Computer Sys. v. Bronx-Lebanon Hosp. Ctr., 212 AD2d 570, 571 (2d Dept 1995]). 4 4 of 6 [*~ILED: 5] SUFFOLK COUNTY CLERK 02/22/2021 12:52 PMJ INDEX NO. 601995 / 2017 RECEIVED NYSCEF: 02/22/2021 NYSCEF DOC. NO. 468 "The court in Sholom & Zuckerbrot Realty Corp. v. Coldwell Banker Commercial Group, Inc., 138 Misc.2d 799, 525 N.Y.S.2d 541 (Sup. Ct., Queens County 1988), held that plaintiffs amendment of the complaint after the defendant has made a motion under CPLR 3211 to dismiss it does not automatically abate the motion. It says that the ' better rule' gives the movant ' the option of withdrawing its motion or pressing it with regard to the amended pleading,' observing that a rule that would have the amendment abate the motion automatically would only invite 'additional motion practice"' (John R. Higgitt, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:61 ). "The Appel late Division, First Department, adopted this ' better rule' in Sage Realty Corp. v Proskauer Rose (251 AD2d 35, 38, 675 N.Y.S.2d 14 [1998]), and the Appellate Division, Second Department, in Livadiotakis v. Tzitzikalakis (302 AD2d 369, 369, 753 N.Y.S.2d 898 (2003 ] citing Sage 251 AD2d at 38) also embraced this rule where the motion to dismiss is addressed to the merits" (Gurary v Rendler, 40 Misc3d 1231 [A] [Sup Ct Kings County 2013 ]). "Reviewing this subject in Sage Realty Corp. v. Proskauer Rose LLP, 25 1 A.D.2d 35, 675 N.Y.S.2d 14 (1998), the First Department held that the moving party " has the option to decide whether its motion should be applied to the new pleadings." In Sage, the defendant asked the court to treat the original motion as being addressed to the amended complaint as well. This was permissible, held the court. And because plaintiff did not object to the treatment, plaintiff could claim no prejudice. See Sobel v. Ansanelli, 98 A.D.3d 1020, 951 N.Y.S .2d 533 (2d Dep't 20 12) ; Toikach v. Basmanov, 31 Misc.3d 615, 918 N.Y.S.2d 844 (Sup. Ct., Kings County 20 11 ). By making such a request, the defendant must of course be satisfied that the amended complaint does not add anything new, or at least does not add any new matter to which the original motion has not addressed itself. But that' s up to the defendant." (John R. Higgitt, Practice Commentaries, supra). Here, there was no such specific request to the court to treat the original motion to dismiss as being addressed to the amended complaint. Although the May 21 , 20 19 so-ordered stipulation could be construed to imply that the two-year-old motion was meant to address the amended complaint, the course charted by SCDS, evidenced by its full engagement in matters of discovery to include depositions, contradicts the potential applicability of that stipulation to the amended complaint. SCDS did not unequivocally "elect" to apply its dismissal motion to the an;ended complaint (Sobel, supra at I 022; cf Rodriguez v Dickard Widder Indus. , 150 AD3d 1169, 1170 [2d Dept 20 17]). Rather, SCDS answered the amended complaint without adopting the motion as applicable to the amended complaint, and the course charted by SCDS evinced its intent to abandon its prior motion and litigate the causes of action by participating in discovery. For example, SCDS's November 18, 2019 letter to the Court requests that the Court extend the time for all defendants to complete the plaintiffs' depositions due to difficulty in scheduling all of the law firms and the plaintiffs' then-claimed availabilities. Moreover, SCDS responded to the Combined Demands of the other parties served upon it, and SCDS served its own Combined Demands, in addition to providing documents in response to numerous discovery requests. 5 5 of 6 [*~ILED: 6] SUFFOLK COUNTY CLERK 0272272021 12:52 PMJ INDEX NO. 601995/2017 RECEIVED NYSCEF: 02 / 22/2021 NYSCEF DOC. NO. 468 Accordingly, this Court grants the three motions for renewal. Upon renewal, this Court's Decision and Order dated May 7, 2020 granting SCDS ' s dismissal motion is hereby vacated. SCDS failed to elect that its 20 17 dismissal motion apply to the 2019 amended complaint; instead, SCDS joined issue when served with the amended complaint and embarked on a course indicating that it desired to litigate this action on the merits, after engaging in substantial discovery, which, frankly, was Justice Kevins' original intention. Having vacated its May 7, 2020 Decision and Order, the Court does not reach those branches of the pending motions seeking reargument. The parties are directed to continue with discovery with all de li berate speed. The foregoing constitutes the Decision and Order of this Court. Dated: February 22, 2021 Riverhead, N Y FINAL DISPOSITION [ ] NON-FIN AL DISPOSITION [ X] 6 6 of 6

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