Valerio v Musialowksi Inc.

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Valerio v Musialowski Inc. 2023 NY Slip Op 31653(U) May 15, 2023 Supreme Court, Kings County Docket Number: Index No. 515697/2017 Judge: Carl J. Landicino 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. 515697/2017 l 'i NYSCEF-, DOC. NO. 101 i;- RECEIVED NYSCEF: 05/16/2023 "' At At an IAS lAS Term Term,, Part Part 81 of of the the Supre Supreme me Court of the State Court of State of of New York, held held in and New York, for the ty of for the Coun County of Kings Kings,, at the Court Courthouse, house, at Adams Street 360 Adams Street,, Brooklyn, York, Brooklyn, New New York, on on the 15thth day of of May May 2023. 2023. PRES ENT: CARL PRESENT: CARL J. LANDICINO, lS.C. LANDICINO, J.S.C. -------------------------------------------------------------------x ----------------------------------------------~-----------------------x ERCI LIO VALE ERCILIO VALERIO, RIO, Index No.: 515697/2017 Index No.: 515697/2017 Plaintiff, Plaintiff, - again againstst - DECI SION AND DECISION ORDER AND ORD ER MUS IALOWKSI INC. MUSIALOWKSI INC. and and LUZ MUSIALOWSKI as .. LUZ MUS IALOWSKI as mana ging agent, managing agent, Motion Seque Motion Sequence nce #3 Defendants. Defendants. -------------------------------------------- '. -------------- --------x ---------------------------------------------~~--------------~--------x Recitation, required by a), of Recitation, as as required by CPLR CPLR 2219( 2219(a), of the papers considered of this papers consid ered in the the review review of this motion: motion: Notice of n/Cross Motio Notice of Motio Motion/Cross Motionn and Affida vits nations) Annexed Annexed ....... ,..::................................................... Affidavits (Affin (Affirmations) Oppos ing Affida vits (Affir mations) ........ .'\, ................................................. Opposing Affidavits (Affirmations) Reply vits (Affir mations) ................................................................ .. Reply Affida Affidavits (Affirmations) Affida vit of e.................................................................................... Affidavit of Servic Service................................................... Papers Numbered Numbered (NYS Papers (NYSCEF) CEF) 44-55, 44-55, 95-98, 1I 95-98, 56. 56. Upon ing papers, papers, and after Upon the the forego foregoing after oral argum argument, finds as as follow follows: ent, the Court Court finds s: The rns the Plaintiff, Plaintiff, Ercilio The nature nature of of this this action action conce concerns Valero's "Plaintiff') claim for for Ercilio Valer o's (the "Plain tiff') claim allege personal injuri es sustai ned on:•Ja nuary 7, 2017. allegedd personal injuries sustained on 'January allegess that slippedd and and fell due 2017. Plaintiff Plaint iff allege that he he slippe fell due to the unsaf tion of ell locate to the unsafee condi condition of a stairw stairwell locatedd at 156 South South First First Street Street (the (the "Prem "Premises") ownedd and and ises") owne managed by dants Musia lowski Inc. and Luz managed by the the Defen Defendants Musialowski Musialowski (collectively Luz Musia lowski (colle ctively the the "Defe ndants"). The Defendants move on seque "Defendants"). The Defendants mov~ (moti (motion sequence summary nce #3) for summ ary judgment judgm ent pursuant pursuant to to CPLR b) and and dismi ssal of CPLR 3212( 3212(b) dismissal of the the action action in its entire entirety. ty. Defen dants, in their motion, motion, conte Defendants, in suppo supportrt of of their contend that Plaintiff an issue issue of of nd that Plaint iff is unable unable to to raise raise an fact se, by August 2, 2019, he is precluded fact becau because, by Court Court order order dated dated August 2,2019, from offeri offering an affida affidavit in precluded from ng an vit in suppo ition to sitive motion. motion. This decisi supportrt or or oppos opposition to aa dispo dispositive decision the Plaint Plaintiff on was was reached reached because because the iff In so far as Plaint iff appare ntly retained retained counsel, counsel, the oppos I In so far as Plaintiff apparently opposition albeit late, late, will considered ition papers, papers, albeit will be be consid ered for es of this motio n. The for the the purpos purposes of this motion. The Defendants Defendants did file reply reply papers. papers. 1I 1 [* 1] o 0 INDEX NO. 515697/2017 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 05/16/2023 Defendants Additionally, Defendants on. Additionally, apparently several Court Court Orders Orders to appear appear for depositi deposition. violated several apparently violated create not create did not and did condition and alleged condition of the alleged contend notice of con~tructive notice actual or con~:tructive had no actual they had that they contend that the Court transcript, the on transcript, same. Defendants deposition Court Order Order dated dated incomplete depositi Plaintif fs incomplete proffer Plaintiffs Defendants proffer same. and Inc.), and Musialowski Inc.), Defendant Musialowski manager for Defendant August (the manager Qosme (the Ada G,osme of Ada affidavit of the affidavit 2, 2019, the August 2,2019, motion. their motion. of their the support of Musialowski in support Luz Musialowski of Luz affidavit of the affidavit court, in court, her day in of his or her litigant of Summaryy judgment deprives a litigant that deprives remedy that drastk remedy judgme nt is a drasti~ Summar of issues of triable issues of triable absence of the absence and "should only doubt as to the there is no doubt when there employed when be employed only be it "should and it 35 Pomeroy, 35 v. Pomeroy, Andre v. citing Andre 2005], citing Dept 2005], material fact." Kolivas v. Kirchoff, AD3d 493 [2d Dept Kirchoff, 1411 AD3d Kolivas v. material fact." judgment proponent for summar The proponent 4]. The NY2d 1341,320 853[1974]. summaryy judgment N.E.2d 853(197 320 N.E.2d N.Y.S.2d 1341, 361,364 ,362 N.Y.S.2d NY2d 361,364,362 tendering law, tendering of law, matter of judgment as a matter must showing of of entitlem entitlement ent to judgment facie showing prima facie make aa prima must make Sheppardf~ct. See of f~ct. issues of material issues sufficient See Sheppardof any material absence of the absence demonstrate the evidence to demonstrate sufficient evidence NY2d 68 NY2d Hospital, 68 Prospect Hospital, Alvarez v. Mobley [2d''Dept citing Alvarez v. Prospect 2004], citing Dept 2004], AD3d 70, 74 [2d King, 10 AD3d v. King, Mobley v. 64 Med. Ctr., New York 320,324,508 501 N.E.2d [1986], Winegra Winegraddv. v. New York Univ. Univ. Med. etr., 64 N.E.2d 572 [1986], 923,501 N.Y.S.2d 923, 320,324 ,508 N.Y.S.2d for summar motion for ning aamotion "In determi NY2d 851, 853,487 316, 476 N.E.2d [1985]. "In determining summaryy N.E.2d 642 [1985]. N.Y.S.2d 316,476 ,487 N.Y.S.2d NY2d 851,853 all and all party, and nonrnoving party, the nonmoving favorable to the judgment, most favorable light most the light viewed in the be viewed must be evidence must judgment, evidence Bruno, 124 v. Bruno, Adams v. party." Adams nonrnoving party." reasonable favor of of the nonmoving 124 resolved in favor must be resolved inference must reasonable inference AD3d 854, Parisio, 119 v. Parisio, citing Valentin AD3d Valentin v. 119 AD3d 854, 2015] citing Dept 2015] 280, 281 [2d Dept N.Y.S.3d 280,281 566, 11 N.Y.S.3d 566, 566, AD3d 566, i Dept N.Y.S.2d 612 983 N.Y.S.2d A.D.3d 735, 989 N.Y.S.2d 621 [2d Dept 735,983 612 [2d [2d Dept v. Velez, 116 A.D.3d Escobar v. 2014]; Escobar Dept 2014]; N.Y.S.2d 621 989 2014]. 2014]. to summar ent to Once showing of of its entitlem entitlement summaryy facie showing prima facie made a prima has made party has moving party Once aa moving form admissible form in admissible proof in evidentiary proof produce evidentiary judgment, shifts to the party to produce opposing party the opposing burden shifts "the burden judgment, "the the action" trial of require aa trial which require of fact which sufficientt to of the action" issues of material issues of material existence of the existence establish the to establish sufficien to Failure to Dept 1989]. Failure AD2d 493 [2d Dept Garnham & Han Oppenheimer, 148 AD2d Brokers v Oppenheimer, Estate Brokers Real Estate Han Real m& Garnha opposing the opposing of the cy of the sufficien of the regardless of make such aa showing showing requires sufficiency motion, regardless of the motion, denial of requires denial make such [* 2] 2 INDEX NO. 515697/2017 •. NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 05/16/2023 il. ii· N.Y.S.2d 166, 168 [2d papers. v. Cmty. Hous. ~gmt. AD3d 518,520,824 518, 520, 824 N.Y.S.2d Mgmt. Corp., 34 AD3d Demshick v. papers. See Demshick iil Dept 1994]. 558-559, 610 N.Y.S.2d Dept 2006]; 2006]; see Menzel v. Plotnick, 20,2 AD2d AD2d 558, 558,558-559,610 N.Y.S.2d 50 [2d Dept Plotnick, 202 Menzel v. Dept However, "[a] plaintiff plaintiff is no longer:/ 10nger~1required required to show show freedom freedom from comparative comparative fault fault in However, :1II i:1 was negligence was that the defendant's establishing his or her facie case.j case.!I...."" if if they they can can show show " ... ...that defendant's negligence primafacie her prima establishing ., AD3d Inc., 163 AD3d Fleet Mgmt., Inc., Mall Fleet Auto Mall proximate cause cause of of the alleged alleged injuriis." injuri~s." Tsyganash Tsyganash v. v. Auto a proximate !! N.Y.3d 312, 1033,1034,83 N.Y.S.3d 74, 74,75 2018]; Rodriguez Rodriguez v. v. City of of New New York, 31 N.Y.3d 75 [2d D~pt 2018]; 1034, 83 N.Y.S.3d 1033, .! i~ 101 N.E.3d 366, 371 [2018]. [2018]. N.E.3d 366, 320, 101 .I.1 (motion motion (motion Turning to the merits merits of of the mobon, mabon, the Court Court finds that that the Defendants' Defendants' motion Turning !l J.S.C. issued sequence #3) should should be granted. granted. On Ahgust Ahgust 2, 2,2019, Paul S. Wooten, Wooten, l.S.C. issued an 2019, the Hon. Paul sequence i~ 1i support Order that that held held that that "Plaintiff "Plaintiff is preclud~d testifying at trial or offering offering an.affidavit anaffidavit in support precludld from testifying Order /1!I .. order preclusion order or opposition opposition to a dispositive dispositive motion motion b~sed upon upon this Court's Court's 7/12/19 7/12/19 Order." Order." A preclusion 1:Ii,. I facie case can be the basis prima facie prevents a Plaintiff Plaintiff f~om making making oht their their own own prima basis of of a Court's Court's that prevents II ·1, .",i 1/ granting of of a summary summary judgment motiort,1 in favor favor of of the moving moving Defendants. Defendants. judgment motioh granting 'I of matter of judgment as a matter defendant demonstrated demonstrated hi~ prima prima facie entitlement entitlement to judgment The defendant case prima facie submitting evidence evidence thafjthe that'lthe plaintiffs could not make make out out a prima facie case plaintiffs could law by submitting because they they were were preclu preclulded testifying as to liability liability and damages. damages. The at trial because ,,ded from testifying plaintiffs failed failed to raise raise a triable triable issue issue of of fact in opposition opposition to the motion, motion, as it is plaintiffs Given trial. Given their case with their undisputed liableto forward with case at trial. move forward to move not be i/able will not they will that they undisputed that that the preclusion preclusion order order prevbnts prevbnts the plaintiffs plaintiffs from offering offering any evidence evidence in that I~ of matter of support of of their their claim, claim, summary summary judgment defendant's favor, favor, as a matter judgment in the defendant's support law, should should have have been been awardedJ awardedJ ., ,\i\ 1 " ,,., N.Y.S.2d 901 [2d Dept 989 N.Y.S.2d -Meslin v. v. George, George, 119 AD3d 915, 915~16, 915~16, Dept 2014]. 2014]. AD3d 915, -Meslin ,, " ''II matter judgment as a matter defendants demonstrated demonstrated tJeir tJeir prima prima facie entitlement entitlement to judgment The defendants prima facie not establish of law law by submitting submitting evidence evidence that that the plaintiffs could not establish a prima plaintiffs could of the issue trial because because they they were were precluded precluded from offering offering any evidence evidence on the issue case at trial of damages damages pursuant pursuant to the September September 3, 2015, 2015, order. order. of I!'i iIi 2019]. 696, 97 N.Y.S.3d -Ciampa Org., LLC LLC v. v. Vergara, Vergara, 171 Al;)3d AllBd 695, 695,696,97 N.Y.S.3d 700, 702 [2d Dept Dept 2019]. -Ciampa ,I 11 3 [* 3] INDEX NO. 515697/2017 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 05/16/2023 demand for a defendant's demand It is undisputed that the plaintiff failed to respond respond to the defendant's plaintiff failed undisputed that precluded thus precluded was thus of particulars particulars and its discovery discoVery demands demands and notices, notices, and and was bill of regarding trial regarding evidence at trial 2014, order order from presenting presenting any evidence November 20, 2014, by the November defendant matters addressed addressed in those notices. As such, such, the defendant demands and notices. those demands the matters law by of law matter of judgment as a matter demonstrated its prima prima facie entitlement entitlement to judgment demonstrated trial case at trial facie case prima facie submitting evidence evidence that that the plaintiff plaintiff could could not not make make out out a prima submitting N.Y.S.2d 989 A.D.3d 915, liability or damages damages (see Mes/in Meslin v. v. George, 119 A.D.3d 915, N.Y.S.2d as to liability issue triable a raise to failed The plaintiff, plaintiff, by failing failing to respond respond to the motion, motion, failed raise triable issue 901). The of fact. of 2016]; Dept 2016]; N.Y.S.3d 146, 148 [2d Dept -Piemonte v. v. JSF 140AD3d 1145,1146-47,36 1146-47, 36 N.Y.S.3d AD3d 1145, Realty, LLC, 140 JSF Realty, -Piemonte Farm State Farm 2008] State Dept 2008] Calder v. v. Cofta, Cofta, 49 AD3d AD3d 484,485, 484,485,853 N.Y.S.2d 596, 597 [2d Dept 853 N.Y.S.2d see also Calder 2007]. Dept 2007]. 617, 619 [2d Dept N.Y.S.2d 617,619 Mut. Auto. v. Hertz 907,908,841 908, 841 N.Y.S.2d AD3d 907, Hertz Corp., 43 AD3d Auto. Ins. Co. v. preclusion the preclusion notwithstanding the case notwithstanding Plaintiff failed failed to show show that that he could could make make a prima prima facie case The Plaintiff granted. of his testimony testimony at trial. Accordingly, Accordingly, Defendants' Defendants' motion motion is granted. of Based on the foregoing, foregoing, it is hereby hereby O~ERED OR,l)ERED as follows: follows: Based judgment is granted Defendants' motion motion (motion (motion sequence sequence #2) for summary summary judgment granted and and the action action The Defendants' with a together with mail), together certified mail), dismissed. The The Defendants Defendants shall shall settle settle a judgment notice (by certified judgment on notice is dismissed. hereof. of this decision decision and and order order within within 60 days of of entry hereof. copy of foregoing constitutes constitutes the Decision Decision and Order Order of of the Court. Court. The foregoing ENTER: ENTER: 4 [* 4]

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