Thomas v Tunnage

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Thomas v Tunnage 2023 NY Slip Op 31440(U) April 28, 2023 Supreme Court, New York County Docket Number: Index No. 159587/2021 Judge: Leslie A. Stroth 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. 159587/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/01/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY· PRESENT: 12 PART HON. LESLIE A. STROTH .Justice -----------""----------'--X RICHARD THOMAS, RICHARD THOMAS AS EXECUTOR ' OF ESTATE OF VESTA THOMAS, Plaintiff, INDEX NO. 159587/2021 04/18/2023 MOTION DATE MOTION SEQ. NO. · 003 005 - V - DECISION + ORDER ON MOTION IRINA TUNNAGE, LESLIE BOYD, OLIVIA LARA, HILLEL BRYK, ELIZABETH TUBRIDY, MICHELLE LIGHTFOOT, Defendant. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 39; 40, 41, 42, 47, 48,49,50, 51, 52, 53, 54,55, 56, 57 SANCTIONS were read on this motion to/for The following e-filed documents, listed by NYSCEF do'cument number (Motion 005) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,81, 82 JUDGMENT- DEFAULT were read on this motion to/for The instant motions arise out of an action brought by plaintiff Richard Thomas (plaintiff) on behalf of himself and the Estate of Vesta Thomas, his mother, for injuries she allegedly suffered at Bellevue Hospital and for racial discrimination, among other clc1;ims. Plaintiffs motion sequence numbers 003 and 005 are consolidated for disposition. Oral argument was held for both motions on April 18, 2023, at which plaintiff appeared but defendant did not. ' ' Plaintiffs motion sequence number 003 for sanctions was withdrawn by plaintiff in open Court on April 18, 2023. Plaintiffs motion _seq. no. 005 · seeks a default judgment as against defendant Leslie Boyd (defendant Boyd) for her failure to appear. DefendantBoyd submits a written opposition and cross-motion for an order dismissing the complaint as against he~, asserting that law office failure caused defendant Boyd's counsel to inadvertently exclude defendant Boyd from a motion to dismiss filed on January 4, 159587/2021 THOMAS, RICHARD vs. TUNNAGE MD, IRINA ET AL · Motion No. 003 005 [* 1] 1 of 4 Page 1 of 4 INDEX NO. 159587/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/01/2023 2022, which was interposed by her co-defendants. See NYSCEF doc. no. 24. Justice Barbara Jaffe granted that motion as against said defendants (but not defendant Boyd) on April 18, 2022, finding that plaintiff lacked capacity to sue on: behalf of his mother's estate because. he had not provided letters of administration from Surrogate's court. See NYSCEF doc. no. 66. Defendant Boyd argues that the .. complaint should similarly be dismissed as against her because of plaintiff's lack of capacity to sue on behalf of his mother's estate. Pursuant to CPLR .3215 (t), governing entry of default judgments: On any application for judgment by default, the applic~t shall file proof of service of the summons and the complaint ... and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party ... On a motion for leave to e.nter a default judgment under CPLR 3215, the moving party must submit "proof sufficient to enable a court to determine that a viable cause of action exists." Bigio v Gooding, 213 AD 3d i' 480 (1st Dept 2023) (internal citations omitted). The Court scheduled oral argument for motiort sequence numbers 003 and 005 for April 18, 2023, and both sides were notified. Plaintiff appeared pro··se but neither· defendant nor her counsel appeared. This was not a voluntary appearance and defendant Boyd did not request nor did the Court grant defendant Boyd permission not to appear .. Defendant Boyd's appearance was not excused, and counsel should have been present to explain defendant Boyd's failure to appear on which plaintiff's motion is based and answer any questions the Court had. The Court in~icated in its March 31, 2023 so-ordered notice to the parties that failure of opposing counsel to timely appear may result in the motion being granted without opposition, irrespective of any prior written submissions. See NYSCEF doc. no. 111. ~; As plaintiff submits proof sufficient to enable a court to· determine that a viable cause of action exists, pursuant to CPLR 3215 (8), plaintiff's motion for a default judgment as against defendant Boyd is > granted without prejudice as to plaintiff's claims on behalf of himself. However, as Justice Jaffe held that plaintiff lacks capacity to sue on behalf of his mother.' s estate, the law of the case doctrine mandates that 159587/2021 THOMAS, RICHARD vs. TUNNAGE MD, IRINA ET AL Motion No. 003 005 [* 2] 2 of 4 Page 2 of 4 INDEX NO. 159587/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/01/2023 defendant Boyd's cross-motion to dismiss the complaint as against her is granted only to the extent of dismissing plaintiffs claims brought on behalf of the Estate of Vesta Thomas. As all claims brought on behalf of the Estate of Vesta Thomas are dismissed as against all defendants, the caption shall be amended to remove "Richard Thomas as Executor of Estate of Vesta Thomas" as a plaintiff. However, the Court notes that the action continues against all defendants as to plaintiffs claims brought on .behalf of himself. Accordingly, it is hereby ORDERED that plaintiffs motion sequence number 003 for sanctions is withdrawn; and it is further ORDERED that plaintiffs motion sequence· number 005 for a default judgment as against defendant Leslie Boyd is granted without prejudice as to plaintiffs claims on behalf of himself; and it is further ORDERED that defendant Leslie Boyd's cross-motion for an order dismissing the complaint as against her is granted as to plaintiffs claims on behalf of the Estate of Vesta Thomas; and it is further ORDERED that the action shall bear the following amended caption: ------------------------------------------------------------- ---------------X RICHARD THOMAS, Plaintiff, against - IRINA TONNAGE, LESLIE BOYD, OLIVIA LARA, HILLEL BRYK, ELIZABETH TUBRIDY, MICHELLE LIGHTFOOT, Defendants. ------------------------------------ -----. --- .------------------------X And it is further ORDERED that within 30 days of entry of this order plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk's I 159587/2021 THOMAS, RICHARD vs. TUNNAGE MD, IRINA ET AL Motion No. 003 005 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 159587/2021 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 05/01/2023 Office (60 Centre Street, Room 119), who are directed to mark the Court's records to reflect the removal of plaintiff "Richard Thomas as Executor of Estate of Vesta Thomas" from the caption; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address [www.nycourts.go.Z,/supctmanh]); and it is further ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy of this order upon all parties, with notice of entry, and shall file such notice via NYSCEF. This constitutes the decision and order of the Court. 4/28/2023 DATE NON-FINAL DISPOSITION CHECK ONE: CASE DISPOSED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: iNCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT GRANTED DENIED 159587/2021 THOMAS, RICHARD vs. TUNNAGE MD, IRINA ET AL Motion No. 003 005 [* 4] 4 of 4 GRANTED IN PART OTHER REFERENCE Page4 of4

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