Duino v. CEM W. Vil., Inc.

2025 NY Slip Op 34757(U)

• Court: New York Supreme Court, New York County
• Decided: December 9, 2025
• Docket: Index No. 158731/2018
• Status: Unpublished
• Author: Denis Reo

Opinion

Duino v CEM W. Vil., Inc. 2025 NY Slip Op 34757(U) December 9, 2025 Supreme Court, New York County Docket Number: Index No. 158731/2018 Judge: Denis Reo 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: NEW YORK COUNTY CLERK 12/11/2025 09:13 AM] INDEX NO. 158731/2018 NYSCEF DOC. NO. 238 RECEIVED NYSCEF: 12/09/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENIS REO PART 65 Acting Justice -X INDEX NO. 158731 /2018 Tony Duino MOTION DATE 09/02/2025 Petitioner, MOTION SEQ. NO. 009 - V -

GEM West Village, Inc., DECISION + ORDER ON Stephan Marsan MOTION Respondents. X

The following e-filed documents, listed by NYSCEF document number (Motion 009) 223, 224, 225, 226, 227,229,232,233,235,236 were read on this motion to/for DISMISS

In this action alleging a trip and fall on a staircase, defendant CEM West Village, Inc.

(CEM) moves pursuant to CPLR § 3211 [a] [7] for an order dismissing plaintiff Tony Duino's

(plaintiff) second amended complaint on the ground that it fails to state a cause of action. CEM

previously crossed-moved pursuant to CPLR § 3212 for summary judgment dismissing

plaintiffs complaint. This cross-motion, as well as co-defendant Stephan Marsan's (Marsan)

motion for summary judgment, was denied by Honorable Shlomo Hagler by decision and order

dated July 15, 2022 1• CEM contends that the instant motion is not duplicative of its prior cross-

motion for summary judgment because the cross-motion for summary judgment was premised on

plaintiffs alleged inability to identify the cause of his fall, whereas the instant motion to dismiss

is premised on plaintiffs deposition testimony, or judicial admissions as CEM refers to it, that

the cause of his accident was his failure to complete the first step as he descended the stairs.

1 Interestingly, CEM did not include Justice Hagler's July 15, 2022 decision and order as an exhibit to its motion to dismiss. When referring to or citing this_ order, the Court is relying on NYSCEF Document Number 128. 158731/2018 DUINO, TONY vs. CEM WEST VILLAGE, INC. Page 1 of 4 Motion No. 009

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CEM also argues that this m~tion does not violate the single motion rule because it is the first

time that CEM is moving to dismiss the complaint for failure to state a cause of action. Plaintiff

opposes the motion.

As an initial matter, the instant motion, denominated by CEM as one to dismiss, is not

violative of the single motion rule (CPLR § 3211 [e]). The single motion rule permits a party to

move only once upon one or more grounds enumerated under CPLR 3211 [a] (TRB Acquisition

LLC v Yedid, 225 AD3d 508 [1 st Dept 2024]). Since CEM's early cross-motion was for

summary judgment pursuant to CPLR § 3212, this is the first time CEM is moving to dismiss

plaintiff's seconded amended complaint pursuant to CPLR § 3211 [a].

Nevertheless, CEM's motion to dismiss must be denied as it is barred by the law of the

case doctrine. The law of the case doctrine contemplates that the parties had a full and fair

opportunity to litigate when an initial determination was made and, when applied, precludes

parties or their privies from re-litigating an issue that has already been decided (Chanice v

Federal Express Corp., 118 AD3d 634,635 [l51 Dept 2014]). Contrary to moving counsel's

assertion, it is clear from the July 15, 2022 decision and order of Justice Hagler that the instant

motion is not the first time that the issue of plaintiff's alleged misstep has been litigated. Before

addressing the "gravamen" of Marsan's motion and CEM's cross-motion for summary judgment,

i.e., that plaintiff did not kno\v why he fell, Justice Hagler expressly addressed "the other explicit

or implicit arguments" asserted in the motion and cross-motion. Those arguments included, inter

alia, that the accident occurred because plaintiff was drinking alcoholic beverages before the

accident; that plaintiff was aware of the condition of the stairs because he went up and down the

staircase twice on the day of the a'ccident and, therefore, the accident was a result of plaintiff's

own action or inaction; and that "plaintiff's accident was because of a 'misstep or plaintiff using

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only his heels to descend the staircas~, and not because of any defect in the stairway or step"

[emphasis added]). In rejecting these arguments, including the argument that the accident was

the result of a misstep by plaintiff, Justice Hagler stated that they went to the issues of

"credibility, evidence of a competing cause of plaintiff's fall, weight of the evidence,

comparative fault, or whether plaintiff can ultimately prove his case at trial" and held that these

issues did not "lend themselves to summary judgment."

A motion to dismiss merely addresses the sufficiency of the pleadings while a motion for

summary judgment searches the record and looks to the sufficiency of the underlying evidence

(Kidd v Delta Funding Corp., 299 Ad2d 457 [2d Dept 2002]). Thus, the denial of a prior motion

to dismiss a complaint for failure to state a cause of action does not bar a subsequent motion for

summary judgment (Tenzer, Greenblatt, Fall/on & Kaplan v Capri Jewelry, Inc., 128 AD2d 467,

469 [1 st Dept 1987]). This case presents the inverse procedural posture. Here, a court of

concurrent jurisdiction has already searched the record on a motion and cross-motion for

summary judgment and expressly found, with respect to the argument that plaintiff's alleged

mi~step caused his fall, that there are issues of credibility, weight of the evidence, etc. that

precluded summary judgment in defendants' favor. Despite this determination, CEM, relying on

plaintiff's deposition testimony, the same evidence previously submitted in support of its cross-

motion summary judgment, how argues that this same deposition testimony renders plaintiff's

second amended complaint insufficient and subject to dismissal. But "where, as here,

evidentiary material is submitted and considered on a motion pursuant to CPLR§ 3211 [a] [7],

and the motion is not converted into one for summary judgment, the question becomes whether

the plaintiff has a cause of c1.ction, not whether the plaintiff has stated one, and the motion

should not be granted unless it has been'shown that a material fact as claimed by the plaintiff to

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be one is not a fact at all and unless it can be said that no significant dispute exists regarding it"

(~elauro v Celauro, 2241 A~3d 12::;s [2d Dept 2025]). Justice Hagler has already determined,

after searching the record, that questions of fact exist with respect to plaintiffs alleged misstep

such that summary judgment had to be denied. In light of this holding, which this court is bound

by, CEM has failed to establish that plaintiff does not have a cause of action.

Accordingly, it is hereby

ORDERED that the motioh is denied and the parties are to appear in Part 40 for jury

selection on July 6, 2026 as previously ordered by Administrative Judge Suzanne Adams.

12/09/2025 DATE DENIS REO, A.J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES T~NSHR/F.EASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

' '

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