De La Cruz v Evers Marina & Seaplane Base
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De La Cruz v Evers Marina & Seaplane Base 2021 NY Slip Op 33059(U) November 18, 2021 Supreme Court, Bronx County Docket Number: Index No. 32797/2020E Judge: Alison Y. Tuitt 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] BRONX COUNTY CLERK 11/30/2021 11:21 AM INDEX NO. 32797/2020E NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/30/2021 NEW YORK SUPREME COURT----------COUNTY OF BRONX PART ----=IA=---5 Index No.: 32797/2020E YOCAIRA DE LA CRUZ, Plaintiff(s), Present: HON. ALISON TIDTT Against Justice EVERS MARINA AND SEAPLANE BASE, C & H MARINE SERVICES, INC., CHARLES EVERS and JANICE EVERS, Defendant(s). The following papers numberedJ_:.2, Read on this Defendant's Motion to Dismiss pursuant to CPLR § 321 l(a)(?), 321 Ha) {8} and EPTL 1-2.13, 5-4.1, subd. I: l l-J2. subd, [bl with stay pursuant to CPLR § I 015 · · On Calendar of 1/8/2021 Notice of Motion -AffinrtatiOn;. Affidavits and Exhibits _1_. Affirmation in Opposition - Affirmation, Affidavit, and Exhibits L R.eply- Affirmation, Affidavit,.and Exhibits L Notice of Cross-Motion -Affirmation, Affidavits, and Exhibits L AffirmationinOppositionto Cross Motion -Affirmation, Affidavit, andE~ibits L. Upon the foregoing papers, Defendants, Charles Evers d/b/a Evers Marina and Seaplane Ba$e's motion pursuant to CPLR § 321 l(a)(7), ~21 l(a) (8) and EPTL 1-:2,13, 5-4.1, subd. 1: 11 -:3 .2, subd. [b] wfth stay pursuant to CPLR §. 1O15, apd Plaintiff's i::ross-motion .pursuant to CPLR § 3025(b) ate consolidated for purposes of .this decision. For the rea,$ons set forth herein, DefendanfChailes Evers d/b/a Evers Marina and Seaplane Base's motion 1s granted, and Plaintiffs cross-motion is granted solely to the extent as to grant its application to 1 2 of 7 [*FILED: 2] BRONX COUNTY CLERK 11/30/2021 11:21 AM NYSCEF DOC. NO. 48 INDEX NO. 32797/2020E RECEIVED NYSCEF: 11/30/2021 amend its swnmons and complaint All other reliefin Plaintiff's cross-motion is otherwise denied, This isan action to recover damages for personal injuries due to the alleged negligence of Defendants, Charles Evers dlb/a Evers Marina and Seaplane Base (hereinafter referred to as "Defendants"), and Janice Evers and C&H Marine Services arising out of a jet ski accident occurring on August 28, 2018 in Eastchester Bay, New York. Plaintiff alleges· that Defendants' negligence causedPlainti:ffwho wasapassenger on·the jet ski to crash into i:i moored motorboat. Defendants.filed the herein motionseeldng dismissal and Plafutiffsubmitted opposition and a cross motion to amend the Complaint. Defendant argues that Plaintiff's complaint should be dismissed as Plaintiff failed to establish a viable cause of action and failed to establish a basis for liability. Defendants continue that the ''bald conclusiortary'; allegations are nonsensical and fail to support a cognizable legal claim as Defendants did not own, control or use the area where the injury occurrednor was the "jet ski or moored boat owned, leased, rented, operated, repaired, or maintained by defendant or any agenl or employee.of defendants." Defendants contend that they had no duty or obligationto Plaintiff as the accident occurred in a public waterway, outside the outskirts of the marina's perimeter. Moreover, Defendants state thalPlaintiffhas "thoroughly failed to allege a dangerous or defective condition on the property of the marina," which resulted in the. accident occurring. Defendants Submit the incident reports of United States Coast Guard and New York Police Department (NYPD) arguing that in both reports, it is dete1n1ined that the incident occurred in Eastchester Bay outside Evers Marina:. Defendants further argue that Plaintiff has also failed to establish a claiiri for negligence related to use, operation or ownership as it relates specifically to motor vehicle accidents not pertaining to.motorboat orjetski. Moreover, Defendants argue there exist no ownership interest in or relation to C&H Marine Services and that Defendant Janice Evers passed away overtwenty (20) years prior. Defendants. state Defendant Charles Evers is a natural person doing business as Defendant Evers M~ine and Seaplane Base. As such, the Affidavit of ~ervice rtor the ~etvice itself complies with CPLR § 308, because neither Defendants Charles Evers, .Evers Maine and· Seaplani::: .Base or Janice Evers are corporationsmakingsubstitute.·service improper; Furthennore "Tony Be:rtJruriih" is not an authori~ed agent of either Defendants. In addition;. Defendants argue· for dismissal of the Complaint against Jan ice Evers who has been dead for over twenty years and 2 3 of 7 [*FILED: 3] BRONX COUNTY CLERK 11/30/2021 11:21 AM NYSCEF DOC. NO. 48 INDEX NO. 32797/2020E RECEIVED NYSCEF: 11/30/2021 cannot be a party to the action putsuantto EPTL 1~2.13, 5--4. l, subd. 1; 11 ~3 .2, subd. [b]. Defendants conclude stating despite the two years Plaintiff had to complete her due diligence she· has failed to sue the correct parties, and though'notified of this, she has failed to discontinue the actions against Defendants and Janice Evers. Defendant states that Plaintiffshotild be sanctioned as it was "readily apparent that this complaint as against defendant is completely without any legal basis or merit." Plaintiff submits·oppositionto Defendants' motion arguing that there are material issues of facrin dispute. Plaintiffargues that Defendants, specifically Defendant Charles· Evers failed to address the allegations accusing him of failing to lock and secure the marina. Plaintiff argues with the support of a New York Times article, that Defendant Charles Evers acknowledged that he ,provides a launch tamp fot personal vessels to access the public waterways, he kept the Marina open and that he encouraged people to leave the water at sunset, but it was difficultto enforce the.rules. Plaintiff continues that discovery is warranted to allow Plaintiff to key·informationwithin the Defendants' "sole knowledge or possession." Moreover, Plaintiff argues that the proof submitted by Defendants is notdocumentary evidence which can be characterized as "unambiguous and of undisputed authenticity/' Plaintiff argues that though she has sufficiently made a c;mse of action of negligence against Defendants, leave is requested to file an Amended Summons :and Complaint. Plaintiff further argues that the Court has jurisdiction over all parties as they were properly served by the process server, the Affidavits of ·Service were corrected to. reflect the service, anq should Defendants. continue to contest service, a traverse hearing is warranted, not dismissal. Plaintiff also requested time to serve should service be· deemed improper after the traverSe hearing. Plaintiff states that she was not aware DefendantJimice Evers was deceased and though she agreed to discontinue the action against DefendantJanice Evers, Defendants filed the herein motion'. Plaintiff concludes that Defendants applicationJor sanctions is ''wholly improper andwithoutmerit" as Plaintiffis willing to discontinue the action with prejudice againstDefendant Janice Evers. Plaintiff files a cross-motion CPLR § ·3 025(b) seeking to supplement the Summons and amend the Complaint adding additional causes ofaction. Plaintiff argues that the statute o:f limitation has yet to expire, and this application is necessary to protectPlaintiff s right Plaintiff states that Defendimts were negligent in failing to enforce NY N av L § 7 3-A(e), and in 3 4 of 7 [*FILED: 4] BRONX COUNTY CLERK 11/30/2021 11:21 AM NYSCEF DOC. NO. 48 INDEX NO. 32797/2020E RECEIVED NYSCEF: 11/30/2021 promoting its v1olatioh. Plaintiff further request.that the Supplement Summons and Amended Cotnpl.afot be de~ITied filed .and $ei:".ved on. all Defendants.rtunc pm tune. Defendants.T Reply and opposition to:Plaintiffs cross'-motion reiterates their arguments for dismissal. Defendant argues that despite Plaintiffs claims, there is·no duty owed to Plaintiffby Defendants, nor do Defendants have atokor casual nexus to the Plaintiffs alleged accident. Defendants further argue that Plaintiff's proposed amendll).entto the Complaint gives tise to the issu,rthat "orie may not profit from one's own wrongdoing;'' Defendants state thatPlaintiff'admits she was acting in violation ofNYNav Law§ 7J~,A(e) and that it is undisputed that the accident was proximately cause by "her reckless activity/' Oefendants:arg:ue that Plaintiff attempts to «;reate a:q.uty from her .own violation ofthe;:,•law by allegations riot provided in the compfaint; not provided by Plaintiff a:nd that are notsupported by admi~sibl.e·evide.nce. ·In addition·, Defendants argue that they have met their burden pursuant to CPLR § 321 l(a)(?} and.CPLR §.. 321 l(a)(S). Defendants state that"no amount ofdiscovery will yield ~dmissible evidence establishing liability where there is no duty,,,. nor cart Piaintiff establish :proper service oftheSummonsan dComJ_)iaintpurs uant to CPLR § 308. D.efendant argues:t.hat despite Plaintiff's attempt 10 cure the defect· by submitting amended Affidavits of Service, .Plaintiff failed to complete the remaining ~tep t<> effectµate se~c~ :by mailip,g the Summons a:nd :Complaint by first class· mail within twenty days of the substitute service. ·Furthennore, Defendants 31:'gµe. thata traverse. hearing is ,not watnmted as service was never effectuated and the time between when Plaintiffwas served ·the motion to· dismiss and the 120-day period for .service was "squaQ.dere4.'' Moreover,.Def'.~nd ants argu,e that the interest of justice nor the preservation of Judicial resources warrant an extensfon oftime tcJ serve D~fendants as.there··was n,o duty owed to Plaintiff.and Plaintiffs injuries were the result of her ''voluntary ertgagem~nt in illegal activity." Defenda11ts note Jhat the complai11t should also be dismissed as a deceased individual,. Janice.Evers may·not be su~d. and Plaintiff a4mitted. jts failure to cor.nplete dµe diligence,. Defendants argue that Plaintifrs faihrre fo complete due diligence couple with her failure to ~tate a cause ofac:tion, lier complicity in violating NY Nav Law § 73-A(e), and her failure to effectuate proper s,eryice warrants s,anctions .for filing a frivolous action. On a.motion to dismiss pursuant. to CPLR 3211, tlii;: plea4in.gis tobe afforded a liberal construction (see, CPLR 3026). In assessing a . motion under CPLR 3211 (a){7). the 4 5 of 7 [*FILED: 5] BRONX COUNTY CLERK 11/30/2021 11:21 AM NYSCEF DOC. NO. 48 INDEX NO. 32797/2020E RECEIVED NYSCEF: 11/30/2021 Court detennines "whether the proponent of the;pleading has a cause of action, not whether ·be. has sta;ted one" (High Definition MRl P..C. v. Travelers Cos., Inc.;. 137 AD3d 602, 602, 29 NY3d 23 ri st Dept 20i67). ,; It is! however, also axiomatic thatfactual allegations which faiho state a viable c_a1,1se ofactio1_1, that consist of bare legal conclusions~. or that.are.·ihherently in.credible:or unequivocally co11:tradicted by doclllllentary evidence, are not entitled to such considerntion. (Leder v. Spiegel~ 31 AD3d 266, 2$7 [1st Dept 2006]). The.New York Court of Appeals has consistently said :that evidence· in an affidavit used by a defendant to attack ·the sufficiency of a pleading_ will seldom if.ever warrant the relief the defendant seeks. unless such evidence conclusively establishes that plaintiff has no cause of ~ction." (Basis-Yield.Alpha Futid (Master) v-. Goldman Sachs Group. Inc., i.1-5 AD3d 128, 131 [1st b~pt 2014]) Defendants provided doctuneiitary evidence alleging that the, accident occurred outside the ccmfines o:ft11~ Marina,,. arguing thatthe.:re is no duty; Hcnvever~ there is:no evidence as to the· property line fotthe Marina to rtile out su.ch a claim nor are _·the dQcuments· provided certified odn adm_issible form~ Moreov~t,. though NY Nav Law §_ 73-A(e) ..provides that ''no person:shali operate a personal-watercraft ora specialty prop-craft at any time :from sunsetto -surttise," to the.-extent that.Plaintiff violated NY Nay Law §.: 73-A(e), her actions would be weighed:~gainst any coinparativ·eliability assessed.with this matter. Assuming fat-purposes of this pre~answer motion to dismiss~. the truth pf Pl~ntiffs cµlegations,. Plaintiffs claim gives rise for an ·actionable claim• of negligence. Thus, Defendants' motion pursuant to CPLR 3211 (a)(7) is denied; The provisions of service on a natural person are found under CPLR § 308. Pursuant to.CPLR § 308,--whc:r;e .service ofproces~ camiot be macle vvitl:i du~ d\ligence by person~I delivery (subd. fl]); a party can tie served by the deliver and mail altemative-(subd [2]), service c~ be effect~d,_ inter alia, " by delivering the summons within the state to ~ person o.( _suitable age and di_scretion at ... the actual . : ; place-of business; dwelling place or usual place t,f abode within and by either mailing t_he summons to- the_ p.et~e>n to be served at his or her last known residence or by mailing the s:um:mons by first class mail to the person to be served at his· ,or he:r actual place of business in an _envelope bearingthe legend "personal and confidential'' ... filedwith the· clerk of the co,uri designated in the sununons within twenty days··ofeither-:such delivery or mailing.. ~''. CPLR .§ 308. Moreover, under CPLR. § .306-b, late s~rvice ofthe Swnmons and Complaint is peim1ssible where· the Court finds "good cause [is] shown odn the 6 of 7 [*FILED: 6] BRONX COUNTY CLERK 11/30/2021 11:21 AM NYSCEF DOC. NO. 48 INDEX NO. 32797/2020E RECEIVED NYSCEF: 11/30/2021 interest of justice. 11 CPLR § 306-b; In Pennington v. Da Nico Rest. ; 123 AD 3 d 62 7, 627 ~ 28, 1 N.Y. S.3d 26 [1st Dept 2014], the Court held that Plaintiffs lack ofdue diligence is ''mitigated by the facts that[Defendant] had timely notice of the claim; [Defendant] had been timely:, albeit defectively, served; plaintiff had communicated with [Defendant's]insurer and provided the insurer with copies of relevant medical records; there· was no prejudice to [Defendant];. and the statute of limitations had expired since the corillhencement of the action." Defendants' motion to.dismiss under CPLR § 321 l(a)(S) is also.denied. The Court finds that ah extension of time to serve the Summons and Complaint and Supplemental Sun1rrions and Amended Complaint is warranted based on several factors. These factors include that Plaintiff timely served Defendants, Charles Evers, and Evers Maine and Seaplane Base at the place ofbusiness, though defective, Plaintiff communicated with Defendants' counsel and exchanged records from the NYPD and United States Coast Guard, that since the filing ofthe • herein motion,the statute of limitations has expired· and there is· ho prejudice to Defendants· as they had notice of the action. Thus, the Summons and Complaint and Supplemental Summons and Amended Complaint shall be served on Defendants, Charles Evers, and Evers .Maine and Seaplane Base pursuant to the CPLR. As the parties have discussed and agreed, the action is dismissed against Defendant Janice Evers~ In light ofthe above, Defendants' motion is denied. Accordingly, Defendants' motion to dismiss is denied. and· Plaintiffs cross-motion to file a Supplemental S unimons and Amended Complaint is granted in part. ORDERED that Defendants' motion for an Order pursuant to CPLR . § 3211(8)(7) and CPLR§ 321 l(a)(S) dismissing Plaintiffs' complaint is denied; and itis further ORDERED thatPlaintiffs' cross motion for an Order pursuant to CPLR § 3025(b}to supplementthe Suminons, and amend the Complaihtand Captionis granted solely to the extent that Plaintiffs. are granted thirty (30) days to properly. serve Defendants Charles Evers; and Evers Maine and Seaplane Base with the Summons and Complaintand the Supplemental SUITI.mons andAinended Com.plaint. The.remaining reliefis otherwise denied. This constitutes the decision and Order of this Court. Dated: November _ _,. 2021 lion. Alison Y. T'qitt 6 7 of 7
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