Harrison v Empire State Elec. Maintenance & Data Corp.
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Harrison v Empire State Elec. Maintenance & Data Corp. 2021 NY Slip Op 32232(U) November 9, 2021 Supreme Court, New York County Docket Number: Index No. 153641/2021 Judge: Frank P. Nervo 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. 153641/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 11/09/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. FRANK NERVO Justice ---------------------------------------------------------------------------------X JAMES HARRISON, INDEX NO. MOTION DATE Plaintiff, 04 153641/2021 07/28/2021 001 MOTION SEQ. NO. -vEMPIRE STATE ELECTRIC MAINTENANCE & DATA CORP., NY ELECTRIC MAINTENANCE & DATA CORP, NY ELECTRIC & DATACOM LLC,ERIC ROJAS DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 were read on this motion to/for DISCOVERY . Plaintiff moves this Court for an order, inter alia, striking defendants first, fourth, fifth and sixth affirmative defenses.1 Defendants oppose contending that plaintiff’s motion fails to set forth the requisite factual support to establish the defenses are without merit as a matter of law. As an initial matter, the Court notes that plaintiff’s and defendants’ papers fail to comply with the Court’s Uniform Rule 202.8-b, requiring an attorney certify the number of words in their motion papers does not exceed 7,000 (22 NYCRR § 202.8-b). “Page limits on submissions are appropriate, as is the rejection of papers that fail to comply with those limits” (Macias v. City of 1 Plaintiff withdrew that portion of his motion seeking to compel discovery responses (NYSCEF Doc. No. 19). 153641/2021 HARRISON, JAMES vs. EMPIRE STATE ELECTRIC Motion No. 001 1 of 4 Page 1 of 4 [* 2] INDEX NO. 153641/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 11/09/2021 Yonkers, 65 AD3d 1298 [2d Dept 2009]). Plaintiff and defendants fail to provide the requisite certification. The current Uniform Rules had been in effect for nearly six months prior to the instant filings, public comment on these rules was sought in August 2020, and the rules were published, via Administrative Order 270/20, in December 2020. Additionally, the Uniform Rules are available on the Court’s website. This is not a situation where counsel can reasonably argue they were caught unawares of the Uniform Rules. The Court therefore rejects the motion papers in their entirety, and denies the motion. As an alternative holding and assuming, arguendo, that the Court were to address the motion on the merits, plaintiff’s motion is denied. It is beyond cavil that on a motion to dismiss an affirmative defense pursuant to CPLR § 3211(b), “the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law” (Granite State Ins. Co. v. Transatlantic Reins Co., 132 AD3d 479 [1st Dept 2015]). Additionally, “[t]he defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed” (534 East 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541 [1st Dept 2011]). 153641/2021 HARRISON, JAMES vs. EMPIRE STATE ELECTRIC Motion No. 001 2 of 4 Page 2 of 4 [* 3] INDEX NO. 153641/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 11/09/2021 Here, plaintiff’s motion is entirely conclusory, comprising approximately two pages of substantive argument directed to the four affirmative defenses. Bald assertions, without evidentiary support, are insufficient to establish a defense is without merit as a matter of law. Furthermore, this matter is at its infancy, no conferences have been held, no discovery orders have been issued, and the record indicates very little discovery has been exchanged. Accordingly, dismissal of the affirmative defenses is, at best, premature. Accordingly, it is ORDERED that the motion is denied for failure to comply with the Uniform Rules; and it is further ORDERED that the motion is further denied on the merits as wholly conclusory; and it is further ORDERED that the impasse identified in counsels’ joint letter (NYSCEF Doc. No. 20), the pendency of this motion, having been removed, counsel shall confer and file, via NYSCEF and in accordance with the Part Rules, a proposed preliminary conference order and joint letter, if applicable, within 10 days of this order. Failure to timely submit a proposed order shall 153641/2021 HARRISON, JAMES vs. EMPIRE STATE ELECTRIC Motion No. 001 3 of 4 Page 3 of 4 [* 4] INDEX NO. 153641/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 11/09/2021 constitute waiver of same and may result in the Court issuing an order sua sponte, in its sole discretion. THIS CONSTITUTES THE DECISION AND 11/9/2021 DATE CHECK ONE: ORDER OF THE COURT. $SIG$ FRANK NERVO, J.S.C. CASE DISPOSED GRANTED X X DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153641/2021 HARRISON, JAMES vs. EMPIRE STATE ELECTRIC Motion No. 001 4 of 4 OTHER REFERENCE Page 4 of 4
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