Rivera-Melendez v Bronxworks, Inc.

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Rivera-Melendez v Bronxworks, Inc. 2021 NY Slip Op 33687(U) June 15, 2021 Supreme Court, Bronx County Docket Number: Index No. 29309/2018E Judge: Adrian Armstrong 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. INDEX NO. 29309/2018E FILED: BRONX COUNTY CLERK 06/16/2021 11:17 AM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/16/2021 SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF BRO NX, PART 21 ------------------------------- ----------------- ------ ------------X OSCAR RIVERA-MELENDEZ, Index M1. 29309/2018E Plaintiff, -againstBRONXWORKS, INC., et al., Defendants. Hon. ADRIAN ARMSTRONG --------------------------------------- ----- ----- -------------X AND A THIRD- PARTY ACTION The fo llowing papers num bered were read on this motion (Seq . No. 00 1) for DISMISSAL noticed on Notice of Motion - Orde r to Show Cause - Exhi bits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits No (s). 26-32 34 No (s) . 35 No (s). Defendan ts/Third-P arty Plaintiffs motion for summ ary judgment is decided in accordance with the attac hed Decision and Order. Dated: 6/15/2021 Hon. _ _ _ ____ _;- -,< ;... _~+ ---- --ADRIAN ARM STR O G, A.J.S.C. Motion is Respectfull y Referred to Justice Dated : _ _ HO~. Mr.ANN. ARMSTR G. J.C.C. _ _ _ __ 1. CHECK ONE. .. .... .... ..... .... ....... ......... .... .... 0 CASE DISPOSED IN ITS ENTIRETY 2. MOTION IS....... ...... ... ......... .. ..... ..... ......... D GRANTED 3. CHECK IF APPROPRI ATE ........ ..... ... ..... D SETTLE ORDER D DENIED D GRANTE D IN PA RT D OTHER D SUBMIT ORD ER O SCHEDULE APPEARA NCE 0 FIDUCIA RY APPOINTMENT [* 1] 0 CASE STILL ACTIVE 1 of 4 0 REFEREE APPOINTMENT FILED: BRONX COUNTY CLERK 06/16/2021 11:17 AM NYSCEF DOC. NO. 36 INDEX NO. 29309/2018E RECEIVED NYSCEF: 06/16/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X OSCAR RIVERA-MELE DEZ, Plaintiff, DECISION and ORDER Index No. 29309/2018E - against BRONXWORKS, INC. d/b/a THE PYRAMID SAFE HA VEN and 4 70 EAST 161 LLC, Defendants. ----------------------------------------------------------------------X AND A THIRD-PARTY ACTION Adrian Armstrong, J. Upon the foregoing papers, the motion by defendants/third-party plaintiffs Bronxworks, Inc. d/b/a The Pyramid Safe Haven and 4 70 East 161 LLC, ("Bronxworks") is decided as follows. This is an action in which plaintiff seeks monetary damages for personal injuries he allegedly sustained when he fell down a stairwell at a drug rehabilitation/interim housing center operated by defendant Bronxworks on May 12, 2018. The plaintiff died on July 25, 2020 and the plaintiff's counsel advised the other parties of the plaintiffs death on or about July 30, 2020, the date that the plaintiff was scheduled to have been deposed. After plaintiff's death, the court scheduled several conferences that served as control dates to ascertain whether the plaintiffs counsel had taken action to have a representative appointed for the plaintiffs estate. No depositions have been held and written discovery is not completed . To date, the representative(s) of plaintiff's estate have not taken any action to substitute a proper party in plaintiffs stead. Bronxworks now seek to have this action dismissed pursuant to CPLR §1021. Movants' argue that there is no reasonable and justifiable excuse for the delay in this matter, and no [* 2] 2 of 4 FILED: BRONX COUNTY CLERK 06/16/2021 11:17 AM NYSCEF DOC. NO. 36 INDEX NO. 29309/2018E RECEIVED NYSCEF: 06/16/2021 explanation was ever provided by plaintiff's counsel why no action has been taken in the months since the plaintiff's death. Movant's argue that given the passage of time since the period of the alleged negligence and the commencement of this suit, they w ill be prejudiced if forced to defend this action which arises from an alleged incident that took place in May 2018. In opposition, counsel for plaintiff argues that the death of the plaintiff stayed all further proceedings and while a defendant may seek dismissal under CPLR §1021 for failure to timely substitute an administrator, it cannot do so by motion on notice. Upon the death of Oscar Rivera-Melendez, the proceedings were automatically stayed, and this court was divested of jurisdiction to act until a representative is appointed for the decedents estate. CPLR 1021 provides an exception to the principle that the Supreme Court is divested of jurisdiction to act during an automatic stay (see Washington v Min Chung Hwan, 20 AD3d 303, 305 [1 st Dept 2005)). However, a motion to dismiss pursuant to CPLR 1021 requires notice to parties interested in the estate of Rivera-Melendez, and such notice was not provided here in. Notice to the attorney for the origi nal plaintiff does not suffice (see Gonzalez v Ford Motor Co., 295 AD2d 474, 475 [2 nd Dept 2002)) . In any event, in New York there is a strong public policy favoring the disposition of cases on the merits (Peters v City of N. Y. Health & Hosps. Corp. , 48 AD3d 329 (Pt Dept 2008)) . Here, there was a delay of only approximately 9 months between the date plaintiff Rivera-Melendez died and the date defendants/third party plaintiffs moved to dismiss. Accordingly, it is ORDERED that the defendants/th ird party pla intiffs' motion to dismiss is denied with leave to renew. [* 3] 3 of 4 FILED: BRONX COUNTY CLERK 06/16/2021 11:17 AM NYSCEF DOC. NO. 36 INDEX NO. 29309/2018E RECEIVED NYSCEF: 06/16/2021 This is the Decision and Order of the Court. Dated: June 15, 2021 HON. ADRIAN N. ARMSTRONG. J.C.C. [* 4] 4 of 4

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