Marquez v Difiore

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Marquez v Difiore 2021 NY Slip Op 32573(U) December 6, 2021 Supreme Court, New York County Docket Number: Index No. 159136/2020 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. 159136/2020 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/06/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. FRANK NERVO Justice ---------------------------------------------------------------------------------X INDEX NO. ALEXIS MARQUEZ, MOTION DATE Plaintiff, MOTION SEQ. NO. -vJANET DIFIORE, LAWRENCE MARKS, GEORGE SILVER, DOUGLAS HOFFMAN, SALIANN SCARPULLA, LORI SATTLER, JOHN MCCONNELL, LAUREN DESOLE, KAYANN PORTER, LISA EVANS, DENIS REO, LUCIAN CHALFEN, EUGENE FAHEY, PAUL FEINMAN, MICHAEL GARCIA, JENNY RIVERA, LESLIE STEIN, ROWAN WILSON, JANET DIFIORE, THE NEW YORK STATE UNIFIED COURT SYSTEM, THE STATE OF NEW YORK, 04 159136/2020 07/23/2021, 09/28/2021 006 007 DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 006) 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 146, 147, 160 were read on this motion to/for DISMISS . The following e-filed documents, listed by NYSCEF document number (Motion 007) 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 148, 149, 161, 162 were read on this motion to/for DISMISSAL . In these motions, defendants move to dismiss the complaint, alleging, inter alia, want of personal jurisdiction, failure to state a claim, collateral estoppel, and expiration of the statute of limitations. In opposition, plaintiff contends that she lacks the resources to litigate this state action while a related federal action remains pending. 159136/2020 MARQUEZ, ALEXIS vs. DIFIORE, JANET Motion No. 006 007 Page 1 of 4 1 of 4 [* 2] INDEX NO. 159136/2020 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/06/2021 As an initial matter, CPLR § 306-b requires service of the complaint within 120 days of commencement of an action. Such service is completed, in accordance with CPLR § 307, when the complaint is received by the defendantagency’s office. Notwithstanding that the time to serve may be extended for good cause or in the interest justice, plaintiff has not applied for such relief here (see generally Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Here, the action was commenced on October 16, 2020 (see NYSCEF Doc. Nos. 1 & 2) and service was completed against the State Agency on February 16, 2021 (see NYSCEF Doc. No. 5). This is a period of 123 days, three days beyond the limit imposed by the CPLR. Accordingly, the action must be dismissed as against the State Agency, New York State Unified Court System for want of jurisdiction. As against all other defendants, and as an alternative holding as to the State Agency, plaintiff’s complaint violates CPLR § 3014, and is therefore dismissed. CPLR § 3014 requires a pleading be concise. “The court should not be compelled to wade through a mass of verbiage and superfluous matter in order to pick out an allegation here and there, which, pieced together with other statements taken from another part of the complaint, will state a cause of 159136/2020 MARQUEZ, ALEXIS vs. DIFIORE, JANET Motion No. 006 007 Page 2 of 4 2 of 4 [* 3] INDEX NO. 159136/2020 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/06/2021 action. The time of the court should not be taken in a prolonged study of a long, tiresome, tedious, prolix, involved and loosely drawn complaint in an effort to save it” (Barsella v. City of New York, 82 AD2d 747, 748 [1st Dept 1981] quoting Issacs v. Washougal Clothing Co., 233 App Div. 568, 572 [4th Dept 1931]). Here, the complaint comprises 725 paragraphs across 133 pages, many of which are entirely irrelevant to plaintiff’s claims.1 As in Barsella, the complaint contains “many obviously prejudicial allegations as well as much trivia” (id. at 748). In opposition to these motions, plaintiff once again advises she lacks the resources to litigate this state action simultaneously with her federal action. This Court has rejected this exact claim on prior applications no fewer than three times. As the Court has previously stated, and reiterates here, “a pro se litigant acquires no greater rights than those of any other litigant and cannot use such status to deprive defendant of the same rights as other defendants” (Stewart v. ARC Development, LLC, 138 AD3d 413 [1st Dept 2016] quoting Brooks The Court is further constrained to note that much of the ultimate relief sought is unavailable, including directing a state agency promulgate “a state-wide sexual harassment policy specifically tailored to the New York State court system and designed to eliminate ongoing violations of the equal protection guarantee of the Fourteenth Amendment”. 1 159136/2020 MARQUEZ, ALEXIS vs. DIFIORE, JANET Motion No. 006 007 Page 3 of 4 3 of 4 [* 4] INDEX NO. 159136/2020 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 12/06/2021 v. Inn at Saratoga Ass’n, 188 AD2d 921 [3d Dept 1992]; see also Davis v. Mutual of Omaha Ins. Co., 167 AD2d 714 [3d Dept 1990]). Plaintiff, by filing the instant complaint while her federal action remains pending has charted her own course of simultaneous state and federal action; she cannot now be heard that her own litigation strategy is too burdensome. Having determined that the complaint fails to comply with CPLR § 3014, the Court need not reach the remainder of the defendants’ motions. Accordingly, it is ORDERED that motion sequence 006 is granted to the extent of dismissing the complaint against the New York State Unified Court System for want of jurisdiction; and it is further ORDERED that motion sequences 006 and 007 are granted to the extent of dismissing the complaint for failure to comply with CPLR § 3014. THIS CONSTITUTES THE DECISION AND 12/06/2021 DATE CHECK ONE: ORDER OF THE COURT. $SIG$ FRANK NERVO, J.S.C. X CASE DISPOSED GRANTED NON-FINAL DISPOSITION DENIED X GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 159136/2020 MARQUEZ, ALEXIS vs. DIFIORE, JANET Motion No. 006 007 OTHER REFERENCE Page 4 of 4 4 of 4

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