Johnson v Daddy Greens LLC

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Johnson v Daddy Greens LLC 2021 NY Slip Op 32326(U) November 15, 2021 Supreme Court, Kings County Docket Number: Index No. 514167/19 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 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 At an IAS Term, Part 57 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street,Brool<lyn, New York, ohthe 15 th day of November; 2021. PRES ENT: HON. LA WRENCE KNIPEL, Justice. - - -··- - ..; - ·- - - - - - ·- - - - ..;· - .-. - - - - - - - - -· - - - ... -· - - - ..i)( SANDRA JOHNSON, Plaintiff, Index No. 514167/19 - against .DADDY GREENS LLC and NADINE CUMMINGS, .Defendants. -~--------~----~----~--------------~--X The followinge-filed papersread herein: NYSCEF·Doc Nos. Notice of Motion/Order to Show Cause/ Petitipn/Cross Motion and Affidavits (Affitmatio11s) A tinexed,_ _ __ 115-127 128:..133 136-148 OpppsingAffidavit (Affirmation) _ _ __ 129-133 135, 137... 148 151-156 Reply Affidavit (Affinnation) _ _ _ __ 135 Upon the foregoing papers in this personal injury action, defendant Nadine Cummings (Cummings) moves (in motion sequence [mot. seq.] seven) for an order, pursuant to CPLR32l2, granting her summary judgment dismissing the complainL Plaintiff Sandra Johnson (Johnson) cross-moves (in mot. seq. eight) for an order: vacating the court's January 25, 2021 order of preclusion (Preclusion Order), pursuant to· CPLR 5015, of; ai terrtati ve ly (2) tnodify ing the Preclusion Order, pursuant to CP~R 5015; . Defendant Daddy Greens LLC (Daddy Greens) ctoss~moves (in mot. seq.·nine) for an order, pursuant to CPLR 3212, granting it sumITiary judgment dismissing the complaint. 1 of 8 [*FILED: 2] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 Background On June 26, 2019; Johnson cominenced this personal injury action by filing a summons and a verified complaint alleging that on oraboutNoveniber 16, 2018, whiJe·she was at Daddy Greens, a pizzeria at 352 Malcolm X Boulevard in Brooklyn, she was seriously injured due to a dangerous and defective bench upon which she was sitting. On October 3, 2019, Cummings answered the complaint, denied the material allegations therein except admitted that on November 16, 2018, she owned the building at 352 Malcolm X Boulevard in Brooklyn and leased a portion of it to Daddy Greens. Cummings asserted affirmative defenses and the following cross claims against Daddy Greens for: (1) indemnification and contribution; (2) breach ofits contractual obligation to carry general liability insurance in favor of Cummings; (3) contractual indemnification; and (4) breach of its contractual obligation to maintain and repair the leased space. On October 17, 2019, Daddy Greens answered the complaint, denied the material allegations therein, asserted affirtnative defenses and asserted the following cross claims against Cummings for: (1) contribution; (2) common law indemnification; (3) contractual indemnification; and (4) breach ofher contractual obligation to purchase general liability insurance for Daddy Greens' benefit. Afterissue was joined, discovery ensued. On January 5, 202 l, Daddy Greens moved for an order, pursuant to CPLR 3124 and 312 6, disniissirig the con'.lplaint based 011 Johnson's alleged failure to produce ciiscovery in violation of prior cot1rt orders, precluding Johnson from offering any evidence at trial, or, alternatively, com p~lling. Johnson to appear for her deposition and independent medical . . . 2 2 of 8 [*FILED: 3] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 examination.(IME) after producing the outstanding document discovery. On January 13, 2021, Johnson cross-moved for an order compelling party depositions, or, alternatively, precluding defendants from testifying. The January 25, 2021 Preclusion Order By the January 25, 2021 Preclusion Order, which was entered on February 4, 2021, this court granted Daddy Greens' motion and Johnson's cross motion to the extentthat: "1) The following discovery shall be completed to the extent not. done pursuant to the order of this court (Colon, J.) dated 10/13/20, as follows: "a) Plaintiff to. provide· authorizations. to. both defendants as demanded in Daddy Greens['] 12/2/19, 3/11/20, 4/7/20, 7/13/20 and 10/7/20 demands, and Cummings 3/16/20 demand, on or before March 4, 2021 ''b) Plaintiffshall appear for her EBT on or before May 20, 2021 "c) Defendant Daddy Greens to appear for EBT on or · before May 27, 2021, "d) Defendm1t Cummings to appear for EBT on or before June 3, 2021, "EBTs shall be conducted either in person, in a location where social distancing can occur and personal protective gear worn or via Skype. All parties are directed to cooperate with EBT scheduling. "e') ''2) Plaintiffto a,ppearfor IME(:S) on or before July 8; 2021. Defendants to designate (and/or redesignate) on or befor¢ June 4, 2021, reports to be exc;hanged within 45 days. Plaintiff shal I.· file the note of issue on: or before. August .3 3 of 8 [*FILED: 4] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 20,2021. "Failure to comply with this order will result in the noncomplying party being precluded from offering evidence, without the need for further inotion, pursuant to CPLR 3126 (2) withoutfu1iher order of the court. This is a self[-]executing order" (emphasis added). Cummings' InstaniDiscovery Motion On April 1, 2021, Cummings moved for summary judgment dismissing the complaint "on the grounds that, by operation of the Court's January 25, 2021 order, plaintiff is precluded from offering evidence pursuant to CPLR 3126 (2)" and ''[s ]ince plaintiff cannot offer evidence, by operation of law plaintiff cannot make out aprima facie case ... " Cummings submits an attorney affirmation asserting that Johnson did not serve authorizations unti1Jvfarchl6, 2021 (12 days late) and that her"response was incomplete" because she raised an objection to onCitem and stated that another item would be provided ''under a separate cover." Johnson's Cross Motion to Vacate the Preclu$ion Order On April 19, 2021, Johnson opposed Cummings' summary judgment motion and cross-moved for an order vacating or modifying the Preclusion Order. Johnson submits an attorney affirmation asserting thatthe Preclusion Order ''should be vacated due to exigent circumstances existing in Plaintiff's life that made it difficult for Plaintiffs- counselto contact the Plaintiff artci properly comply with Defendant's demands;" Specifically; plaintiff's counsel affirms that "due to Plajrttiff not having a worldng phone, her fear of leaving her home due to the Cov1d-19 pandemic~ and her daµghter suffering from illness; 4 4 of 8 [*FILED: 5] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 our office was unable to adequately communicate with the Plaintiff." Johnson seeks an order vacating the Prec1usionOrder, or, since she has complied with defendants' demands, 1· an order modifying the Preclusion Order to extend the deadline for her to comply. Plaintiffs counsel argues that Johnson's alleged failure to complywith discoverywas not ''willful or contumacious:" Johnson sub111its an affidavit attesting that: "[d]uring the period beginning in late-December 2020 until March 2021 ~ my telephone service was disabled and extremely limited. I was unable to receive or make telephone calls or receive messages as desired. It was not until I was able to change my data plan that I could freely make and receive telephone calls and messages. I later learned that staff members frmn Krentsel Gttzman Herbert, LLP attempted to reach me by telephone during this period and were unsuccessful. "to make matters worse; duringthe·sameperiod, my daughter who is my constant caretaker, became ill due to what we thought wasCOVID-19. She was unable to come tomy home and be in my presence as normal. Consequently, my daughter was also unable to convey to me that the staff at Krentsel Guzman Herbert, LLP were also reaching out to her in an effort to get a hold of me, which I later learned was the case. "Because of my age and comorbidities, I was extremely hesitant to go outside my home and encounter others duringthe last few months due to COVID.-19. This contributed to the difficulty my lawyers faced when trying to reach me during the early part of this year, · · . . . .. . . . "With that being said, as soon as I katned my lawyers w~re 1 Plaintiff's cpunsel asserts that Johrison provided responses .and authorizations. irt response to all -ofdummings 1 demands "except·for her 2005 pritrtary·care physician[,]"·wh.ich Johnsori is ''diligently searching for ... " 5 5 of 8 [*FILED: 6] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 diligently attempting to contact me for information; l called and went to my lawyers' office and explained my circumstances. I have since provided my lawyers with alternate 1neans to reach me so that this never happens again." Johnson also submitted art affidavit from Doreen Amritt (Amrittt a paralegal in her attorneys' office, who describes her efforts to reach Johnson about the outstanding discovery from February 2021 until March 2021. Cummings, in opposition, submits an attorney affirmation asserti11g that "[t]here is no question that Justice Knipe! gave a firm deadline for plaintiff to comply under penalty of preclusion, and plaintiff failed to comply.'' Cummings' attorney also argues that Johnson'$ cross motion is ''procedurally defective'' because CPLR 5015 (a) (5) is inapplicable to the Preclusion Order at issue here, whh;h "is not based on any prior judgment or order ... '' Datldy Greens' Summary Judgment CtossMotion On May 5, 2021, Daddy Greens opposed Johnson's cross motion to vacate or modify the Preclusion Order and cross-moved for summary judgment dismissing the coin plaint based on the Preclusion Order. Daddy Greens submits an attorney affirmation asserting that "there has been ongoing numerous motion practice due to the recalcitrance and contumacious behavior of the plaintiff in failing to comply with prior court orders." Johnson opposed Daddy Greens'.surnrnaryjudgment cross motion by submitting an attorney affirination and affidavits frorri Johnson and Arriritt, which are identical to plaintiffs opposition to,Cununings' .su1tunaty judg111ent motion. Johnson's counsel asserts 6 6 of 8 [*FILED: 7] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 that Johnson responded to defendants' discovery demands and provided authorizations ori March 16, 2021, with the exception of her 2005 primary care physician's medical records, for which she is diligently searching. Johnson's counsel asserts that there is no prejudice to defendants warranting dismissal or preclusion because ''all party deposition[s] in this matter have been completed arid Plaintiffs IME is scheduled to be completed July 1, 2021.'' Discussion It is well-settled that "[a] trial court has the discretion to grant a motion to vacate (or modify) its own order in the interest of justice" (Armstrong Trading, Ltd. v MBM Enterprises~ 29 AD3d 835, 836 [200())), "In general, the supervision of disclosure is left to the broad discretion of the trial court, which must balance the parties' competing interests;' (JPMorgan Chase Bank, Nat. Ass'n v Levenson, 149 AD3d 1053, 1054 [2017] [internal quotation marks omitted]). f{ere, defendants seel<: summary judgment dismissing the complaint based on the Preclusion Order; which required Johnson to provide defendants with authorizations on or before March 4, 2021. Johnson cross-moves to vacate the Preclusion Order or modify that portion of the Preclusion Order which required her to provide the authorizations on or before March 4, 2021, on the ground that she was unable to communicate with her counsel, she suffered personal hardships during the COVID-19 pandemic .and she provided the. requested authorizations to defimdants on March 16, 2021. Under the circumstances presented .here, where. there was only a short. delay (12 days) in prqviding the.requested 7 7 of 8 [*FILED: 8] KINGS COUNTY CLERK 11/16/2021 03:42 PM NYSCEF DOC. NO. 196 INDEX NO. 514167/2019 RECEIVED NYSCEF: 11/16/2021 authorizations, Johnson's conduct was not willful or contumacious, the delay did not prevent the parties froitl moving forward with depositions, the COVID:.19 pandemic contributed to the delay and there is no discerrn1ble prejudice to defendants, an order modifying the Preclusion Order to excuse the slight delay is warranted. Consequently; defendants' summary judgment motion and cross motion are denied, Accordingly, it is ORDERED that Cummings' summary judgment motion (mot. seq. seven) is denied; and it is further ORDERED that Johnson's cross 111otion (itlot seq. eight) is granted to the extent thatthePrcclusion Order is modified so asto aHowtheshort delay in plaintiffs furnishing of the subject authorizations; and it is further ORDERED that Daddy Greens' summary judgment cross motion (mot. seq. nine} is denied. ·This constitutes the decision and order of the court. J. S C. ON. LAWRENCE KNIPEL ADMINISTRATIVE ,}UOGE_ 8. 8 of 8

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