Henry v Carpel Cleaning Corp.

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Henry v Carpel Cleaning Corp. 2023 NY Slip Op 34040(U) November 9, 2023 Supreme Court, Kings County Docket Number: Index No. 501420/2018 Judge: Sharon Bourne-Clarke 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: KINGS COUNTY CLERK 11 14 2023 10:31 AM INDEX NO. 501420/2018 RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 DJMP of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 320 Jay Street, Brpoklyn, N~w Yorr on the / ..!1::_day of c'itu-~u.S · , 2023. PRESENT: HON. HARON BOURNE-CLARKE Justi1 of the Supreme Court --------------------------- -----------------------------------------x AESHA HENRY, Index No. 501420/2018 Plaintiff, -against- DECISION & ORDER CARPEL CLEANING CORP., Defendant. --------------------------------------------------------------------x Upon rJding the filing of the defendant Carpel Cleaning Carp's order to show cause to vacate the default judgment, dismissal of the complaint and attorney's fees and costs, the attorney affirmation ~d memorandum of law of Michael S. O'Reilly of Saul Ewing LLP, the sworn affidavit of Scott Carpel dated July 7, 2023 and exhibits in support of the order to show cause, and upon readink the filing of the plaintiff Aesha Henry's cross motion for an extension of time to serve process, rpplement the summons and amend the complaint to add CBM Solutions LLC, and discovery, toe brief and attorney affirmation of William J. Sanyer of David Horowitz, P.C. in support of the ross motion and in opposition to the order to show cause, and the sworn affidavit of merit of tesha Henry dated August 11, 2022 and upon reading the defendant's opposition to the cross ration and reading the plaintiffs reply in support of the cross motion and in response to defendant's opposition and reading the pleadings, papers and proceedings heretofore had herein and uploade to NYSCEF, and 1 [* 1] f 12 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM INDEX NO. 501420/2018 RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 After or l arguments held on August 15, 2023 with the record now closed, and after due deliberation and c1nsideration, it is the decision and order of this court as follows: FINDINGS OF FACT: AccordI"ng to plaintiff's complaint and affidavit of merit, plaintiff Aesha Henry ("Plaintiff' or "Ms. H nry") alleges that on February 7, 2017, she was employed by Century 21 Department Store at 4 5 Albee Square West, Brooklyn, New York. ("Century 21 "). On this day, while plaintiff was in e course of her employment at Century 21, Ms. Henry alleges she was caused to slip and fall ue to a wet floor condition in the employee bathroom. As a result, plaintiff alleges she sustained s¢rious bodily injuries. Plainti1 further alleges that defendant Carpel Cleaning Corp. ("Carpel Cleaning") was negligent in causing and creating the wet floor condition and or having notice of the condition and failing to remedy ame. 1 Carpel Cleaning submits an aflidavit by its principal Scott Carpel. Mr. Carpel was the principal of Carpel ICleaning. Carpel Cleaning was in the business of providing cleaning and janitorial services. Mr. Carpel avers that Carpel Cleaning is not the proper defendant. Mr. Carpel admits that nonjparty Carpel Building Maintenance knovm as CBM Solutions LLC ("CBM Solution") is the pro~er defendant. CBM Solution likewise provides cleaning and janitorial services. At the relev:bt time period, there is evidence that both Carpel entities were operated by Mr. Carpel out of the lame business address at 28 Bloomfield Avenue, Pine Brook, New Jersey ("28 Bloomfield"). After the accident, Ms. Henry retained the office of David Horowitz, P.C. ("DHPC" or "Firm") t prosecute her negligence claims. Plaintiff submits evidence that a few [* 2] 2 f 12 INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 weeks after the accide t, the Firm mailed a claim letter to Carpel Cleaning at 28 Bloomfield. 1 In late February 2017, Ml Carpel contacted the Firm in response to the claim letter. On January 23, 2018, plaintiff timely commenced her action against Carpel Cleaning. On March 0, 2018, the summons and verified complaint were timely served upon the New York State Seer tary of State for service upon Carpel Cleaning, an unauthorized foreign corporation. Carpel Clleaning was not registered with the New York State Secretary of State and did not provide the Nf w York Secretary of State with an address for service of process. Mr. I Carpel claims that he nfver received notice of the lawsuit in time to defend. Carpel Cleaning did not interpose an answer to the complaint. On July 10, 2018, plaintiff mailed a default letter with the summons and complaint and affidavit of service to Carpel Cleaning at its known business address of 28 Bloomfield. On March 18, 201 9, plaintiff timely moved for a default judgment against Carpel· Cleaning for failing to answer the complaint. The affidavit of service and summons and complaint were filed as an exhibi{ to the motion for default. By Order dated May 7, 2019, the Court granted plaintiff's application for a default I judgment against Carpel Cleaning. On Ma1 3 1, 201 9, plaintiff filed the note of issue together with the default judgment order dated N1ay 7, 2019. There i~ evidence that the Firm on behalf of plaintiff sent multiple mailings related to the lawsuit to Carpel Cleaning at 28 Bloomfield beginning within weeks of the accident through May 2023. The inquest was scheduled and adjourned on several dates and marked final for July 1 Carpel Cleaning does not submit sworn testimony or an affidavit in opposition to the facts alleged by plaintiff in her cross motion. 3 [* 3] 12 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM INDEX NO. 501420/2018 RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 31, 2023. 2 Mr. C el admits that after receiving plaintiff's attorney's two written notices of the inquest dated May 22, 2023 mailed to Mr. Carpel and Carpel Cleaning at 28 Bloomfield, on May 3 I, 2023, Mr. Can,el called plaintiffs attorney to advise him that Carpel Cleaning was not the correct defendant +t that his Carpel company CBM Solutions was the correct defendant. On Jun 1, 2023, over six years post accident, Mr. Carpel emailed plaintiffs attorney the Carpel CB Solutions contract and invoice demonstrating that CBM Solutions had a cleaning contract with entury 21 and was present at the time and place of the plaintiffs accident. Carpel ,leaning now moves to vacate the default judgment and for dismissal of the case due to improper 1ervice. Carpel Cleaning also seeks attorney's fees and costs arguing that plaintiffs continued litigation is frivolous. In resp~nse, plaintiff cross moved seeking leave of this court to extend the time to serve Carpel Cleaning under CPLR 306-b and to supplement the summons and amend the complaint to add CBJ Solutions as a defendant under the relation back doctrine of CPLR 203. Plaintiff likewise submits opposition to vacature of the default, dismissal and for I attorney's fees and cd(sts. Carpel Cleaning submits opposition to the plaintiffs cross motion. Plaintiff submits her re ly. On Aug, st 14, 2023, this Court held oral arguments and closed the record. DECISION AND ORDER That br nch of defendant Carpel Cleaning's order to show cause to dismiss the 2 On July 31, 2023, due to the filing of the defendant's order to show cause, the inquest was adjourned to November 14, 2023 with t~e consent of all parties and the Court. 4 [* 4] f 12 INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 complaint against C el Cleaning is held in abeyance until after service upon Carpel Cleaning under CPLR 306-b. ch of defendant Carpel Cleaning's order to show cause to vacate the default judgment is gr!ted in accordance with this decision and order. That br nch of defendant Carpel Cleaning's order to show cause seeking sanctions, attorney's fe sand or costs pursuant to 22 N. Y.R.R. § 130-1.1 and or CPLR 8303-a is denied. That br ,nch of plaintiffs cross motion pursuant to CPLR 306-b for leave to serve Carpel Cleaning is gr ted in the interests of justice and for good cause as discussed further infra. That br ch of plaintiffs cross motion seeking relief under the relation back doctrine of CPLR 203 to supplemental summons and amend complaint to add CBM Solutions LLC is granted as discrsed further infra. I DISCUSSION Defendant's Requested Relief Under 22 N.Y.C.R.R. §130-1.1 and or CPLR 8303-a: Carpel 61eaning's application for sanctions, attorney's fees and or costs pursuant to 22 N.Y.C.lR. §130-1.1 and or CPLR 8303-a is denied. I find no evidence of frivolous or willful co9duct on the part of the plaintiff and her attorneys. Defendant's Requested Relief To Vacate The Default Under CPLR 5015 This Court finds sufficient reason to exercise its discretion and vacate the default i judgment. The default judgment order dated May 7,2019 (NYSCEF Doc. 8) is vacated in accordance with this dlcision and order of the Court. 5 [* 5] f 12 INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 I ! A partyt application for late service of process pursuant to CPLR 306-b should be liberally granted w · never the movant has been reasonably diligent and there is no prejudice to the opponent. Busie v. Corbett 259 A.D.2d 13,696 N.Y.S.2d 615 (App. Div. 4th Dep't 1999) citing N. Y .Legis. Ann. Q11. cit. at 31 9; Cooke-Garrett v. Hogue, l 09 A. D. 3d 4 57(App. Div. 2d Dep't 2013); See CPL~ §306-b (Supplementary Practice Commentaries at C306-b:3). I This Corrt has broad authority to extend the time for a litigant to serve process upon a foreign unauth1rized corporation. There is no "arbitrary time period with respect to the extension, the matter lif sin the Court's discretion." CPLR §306-b (Supplementary Practice Commentaries at C306-b:3 citing AIG Managed Market Neutral Fund v. Askin Captial Mgt., L.P., 197 F.R.D. 104 (S.D.N.Y. 2000). CPLR 306-b permits this court to grant an extension to serve process upon a defendant when appro riate where good cause is shown or in the interest of justice. Sec CPLR §306-b; and See Leade v. Marone Ponzini & S encer, 97 N.Y.2d 95, 104 (2001). The gobd cause standard requires a threshold showing that plaintiff made "'reasonably diligent edorts" to make timely service. Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d at 104. On the other hand, the interest of justice standard is broad and less stringent than the good cause standarI· to accommodate late service due to "mistake, confusion or oversight, so long as there is no p ijudice to the defendant." CPLR §306-b (2019-Supplementary Practice Commentaries at C:30 -b:3) citing Leader v. Maroney, 97 N.Y.2d 95 (2001). CPLR 306-b requires the Court faced with dismissal of a viable claim to consider any factor relevant to t e exercise of its broad discretion as public policy favors reso Iution of cases G [* 6] INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 on the merits. Leader v1. Maroney 97 N.Y.2d at 105 and Rozz v. Law Office of Saul Kobrick, P.C.,134 A.D.3d 920 +pp. Div. 2d Dep't 2015). Some relevant factors that may be weighed under the interests of justice standard I are: whether the litig~ was diligent in attempting service or not; the expiration of the statute of limitations; the merits Jfthe case; the length of delay in service; the promptness for the request for I an extension; and any rejudice to the defendant. Leader v. Maroney 97 N.Y.2d at 105. A defe dant's knowledge of the nature of the claim and lawsuit within the required time limits will demo strate a lack of prejudice in favor of granting the application. See CPLR §306-b (2016-Supple111-entary Practice Commentaries at C306-b:3) citing Health v. Normilc, 131 A.D.3d 754 (App. Div! 3d Dep't 2015); and Dhuler v. ELRAC, Inc., 118 A.D.3d 937 (App. Div. 2d Dep't 2014). No one factor is dispositive, and the Court may consider all the relevant factors where an extension is requested in the interest of justice. Leader v. Maroney 97 N.Y.2d at 105. Rozz, supra, 134 A.D.3d 920 (Courts favor resolution of cases on the merits). The cref ble and admissible evidence before this Court demonstrates that plaintiffs case has merft. There is credible evidence that advertisements for both Carpel Cleaning and CBM Solutions dting the relevant period highlight the Carpel Cleaning name rather than CBM Solution creating reasonable confusion as to the proper entity. The three (3) year statute of limitations to commence a lawsuit has expired. This I Court is satisfied that upon plaintiff learning of the defective service and potential necessary r party on or about May I, 2023, she investigated and sought relief promptly. Moreover, I find no prejudice to Carpel Cleaning in granting plaintiffs relief 7 [* 7] INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 given its knowledge o 'the plaintiffs claims, her attorney's representation and lawsuit within the statute of limitations p{riod via telephone call and multiple mailings to Carpel Cleaning at its known business addres~ of28 Bloomfield. The ere I ible evidence reveals that Mr. Carpel, principal of Carpel Cleaning, contacted plaintiffs at orney's office following receipt of a claim letter just weeks after the accident of February 7 201 7. In late May 2023, after Carpel Cleaning received two mai 1ings from plaintiffs attorne at its business address of 28 Bloomfield, Mr. Carpel once again called the Firm, and admitted that CBM Solutions is the proper party with the cleaning contract at the time of the accident. N tably, six years post accident on June 1, 2023, Mr. Carpel was able to locate and provide plai tiff the Carpel CMB Solution contract and invoice related to the I plaintiff's claims at Century 21 . The interests of justice warrant permitting plaintiff leave to service process upon Carpel Cleaning. Plai.p.tiff is directed to serve process upon Carpel Cleaning Corp by service of the summons and comraint upon his current attorney by regular mail and uploading same to N YSCEF within 15 dar of entry of this decision and order. Plaintiff is directed to upload to NYSCEF an affidavit 1f service thereafter within 15 days of such service. Carpel Cleaning is directed to interpose an answer by uploading same to NYSCEF within 30 dals of the filing of the plaintiffs affidavit of service. Plaintiffs Re uestcd clicf Under The Relation Back Doctrine of CPLR 203 The R lation Back Doctrine was "aimed at liberalizing the strict, formalistic I pleading requirements of the past century ... , while at the same time respecting the important policies inherent in 4tory repose ... " Buran v. Coupal 87 N. Y.2d 173, 175 (l 995)(Discussing CPLR 203(b)(c) Relati n-Back Doctrine). 8 [* 8] INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 The Court has sound discretion to identify cases that justify permitting a plaintiff to correct a pl ading to add a party or claim after the statute of limitation has expired in order to "facilitate dec~sions on the merits." Buran v. Coupal 87 N.Y.2d at 175. The elation Back Doctrine allows a claim asserted against a defendant in an amended filing to relat back to the original claims previously asserted against a co-defendant for statute of limitations p oses where both claims arise out of the same conduct, transaction or occurrence; the new pry is united in interest with the original defendant and that by reason of that relationship he ca1 be charged with notice of the lawsuit that he will not be prejudiced in maintaining a defense 9n the merits; and the new party knew or should have known that, but for Br a mistake by plaintiff ais to the identity of the proper parties, the action would have been brought against him as well. 87 N. Y .2d at 175 (Discussing CPLR 203(b)). Sig ificantly, if the new defendant had notice of the claim within the statute of limitations period, it favors granting a litigant's requested relief under CPLR 203. Uddin v AT.A Construction Corp., 164 AD.3d 1400, 1401 (App. Div. 2d Dep't 2018) leave to appeal dismissed Uddin v. A.TA Construction Corp., 32 N.Y.3d 1144 (2019) quoting Alvarado v. Beth lsra~l Medical Center, Jo A.D.3d 981, 1982 (App. Div. 2d Dep't 2009)(holding that the "linchpin I of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period.") t this juncture in the litigation, based on the record before this Court, plaintiff has submitted sufficient evidence to satisfy the three prongs under the relation back doctrine of CPLR 203 o warrant the requested relief. review of the original complaint and proposed amended complaint 9 [* 9] f 12 INDEX NO. 501420/2018 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 reveal that the plaintif alleges identical facts and negligence allegations demonstrating that both 1 claims arise out of the jame conduct, transaction and occurrence. fased on the admissible and credible evidence submitted, this Court is satisfied that there has een a sufficient showing that defendant Carpel Cleaning Corp. and nonparty CBM Solutions, LC are united in interest to permit CBM Solutions, LLC to be charged with notice of the laws it that CBM Solutions will not be prejudiced. ndeed the evidence demonstrates that the two Carpel entities operated jointly and have blurre the distinction of the corporate companies supporting a finding of unity. Uddin v A.T.A. Construction Corp .• 164 A.D.3d 1400, 1401 (App. Div. 2d Dep't 2018) leave to appeal dismissed Uddi1 v. A.T.A. Construction Corp., 32 N.Y.3d 1144 (2019) quoting Alvarado v. Beth Israel Medical Ce, ter 60 A.D.3d 981, 1982 (App. Div. 2d Dep't 2009). o be sure, Mr. Carpel is the principal of Carpel Cleaning, an unauthorized foreign ct;::,rporation. Mr. Carpel likewise has the authority to speak for CBM Solutions, LLC. Acco ding to the credible evidence presented, Carpel Cleaning and CBM Solutions, LLC operat d a similar if not the same cleaning and janitorial services business out of the same office addres at 28 Bloomfield. Both entities are operated by the same principal and hold the principal's cleaning businesses. laslnarne of Carpel, and use the same telephone number to operate its . customer calling the number for CBM Solutions would necessarily also be reaching Carpel Clering and vice versa. Advertisements for CBM Solutions LLC and or Carpel Cleaning highlisht Carpel Cleaning services blurring the corporate companies. .f I ~rthermore, six years after th~ acc~dent, on or ~bout M~y 31, 2023, Mr. Carpel, contacted plamtift's attorney and was able to identify and admits that his Carpel company CBM Solutions LLC i the proper defendant cleaning company. Although Mr. Carpel avers that 10 [* 10] FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM INDEX NO. 501420/2018 RECEIVED NYSCEF: 11/14/2023 NYSCEF DOC. NO. 101 he contacted plaintiff's attorney related to lawsuit against Carpel Cleaning, he was able to locate the CBM Solutions co ract and invoice and on June 1, 2023 provided plaintiffs attorney with the same. Again, the co tract and invoice highlight the Carpel name. ore importantly, there is evidence that Mr. Carpel contracted plaintifrs attorney within weeks If the accident in response to a claim letter regarding the plaintifr s accident at Century 21. Carpel Cleaning does not dispute this fact although it had an opportunity to do so. here is sufficient evidence that both Carpel Cleaning and CBM Solutions LLC through Mr. Carp I, had notice of the claim and lawsuit prior to the expiration of the three year statute of lirnitatio s such that CBM Solutions will not be prejudiced in defending on the merits. inally, the record reveals that plaintiff made a mistake in identifying the proper Carpel entity and that CBM Solutions, LLC through Mr. Carpel, should have known that but for the plaintiffs mbtake, the action would have been commenced against CBM Solutions, I LLC. Mr. Carpel, pri,cipal of Carpel Cleaning, admits that CBM Solutions LLC is the proper defendant and exchanged the proper contract and invoice. tccordingly, at this juncture in the litigation and based on the credible and admissible evidence before the Court, plaintiff's requested relief under the relation back doctrine ' of CPLR 203 is grante+ tlaintiffis directed to upload to NYSCEF w1thm 30 days of entry ofth1s Decision and Order anl uploaded to NYSCEF, the proposed supplemental summons and amended complaint annexed to the plaintiffs cross motion as Exhibit A Plaintiff is further directed to serve proce s of the supplemental summons and amended complaint upon both 11 [* 11] 11 of 12 FILED: KINGS COUNTY CLERK 11 14 2023 10:31 AM NYSCEF DOC. NO. 101 INDEX NO. 501420/2018 RECEIVED NYSCEF: 11/14/2023 Carpel Cleaning Corp., through its present attorney, and upon CBM Solutions LLC per CPLR and or BCL or other go erning statute for service of process. his Court's decision granting plaintiffs relief under CPLR 203 does not preclude CBM Solutia s LLC from raising all appropriate defenses which will be decided after ORDERED, th t Defendant Carpel Cleaning Carp's order to show cause is denied to the extent it seeks an award of costs and attorneys' fees pursuant to N. Y. C. C.R. R. 22 § I 30-1.1 and C.P.L.R. § 8303-a and is otherwise held in abeyance pending service of the summons and complaint on DefendantI Carpel Cleaning Corp and CBM Solutions LLC; and it is further ORDERED, t+t the parties are directed to appear at !AS Part on January 23, 2024 for oral argument on the p rtions of Defendant Carpel Cleaning Corp' s order to show cause that are held in abeyance. his constitutes the decision and order of the Court. Dated: New York, New York ~t\J~ ~--- f 1 'i2023 SO ORDE!1 . ,.- . --------11--(-JL----41-.'-------J.S.C. 12 [* 12]

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