Espinosa v. Cape Church Assoc., LLC

2025 NY Slip Op 30454(U)

• Court: New York Supreme Court, New York County
• Decided: February 5, 2025
• Docket: Index No. 160747/2019
• Status: Unpublished

Opinion

Espinosa v Cape Church Assoc., LLC 2025 NY Slip Op 30454(U) February 5, 2025 Supreme Court, New York County Docket Number: Index No. 160747/2019 Judge: Judy H. Kim 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 02/05/2025 04:47 PM INDEX NO. 160747/2019 NYSCEF DOC. NO. 492 RECEIVED NYSCEF: 02/05/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 160747/2019 JOSE SABIAGA ESPINOSA, 07/02/2024, Plaintiff, MOTION DATE 09/03/2024

-v- MOTION SEQ. NO. 009 011

CAPE CHURCH ASSOCIATES, LLC, CONSIGLI & ASSOCIATES, LLC, T.G. NICKEL & ASSOCIATES, LLC, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X

CAPE CHURCH ASSOCIATES, LLC, CONSIGLI & Third-Party ASSOCIATES, LLC, Index No. 595913/2020

Third-Party Plaintiffs,

-against-

AM ARCHITECTURAL METAL & GLASS INC.,

Third-Party Defendant. --------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 009) 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 435, 437, 441, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 470, 485, 486, 487, 488, 489, 490 were read on this motion to AMEND CAPTION/PLEADINGS .

The following e-filed documents, listed by NYSCEF document number (Motion 011) 413, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 439, 440, 443, 468, 469, 471, 484 were read on this motion to AMEND CAPTION/PLEADINGS .

Upon the foregoing documents, the motions by defendants and third-party defendant to

amend their Answers to assert counterclaims for fraud are denied.

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In motion sequence 009, third-party defendant AM Architectural Metal & Glass Inc. moves

for an order: (1) granting it leave to amend its Answer to include a counterclaim for fraud as against

the plaintiff; and (2) striking plaintiff’s note of issue (filed on December 29, 2023) to permit

discovery related to its counterclaim, including compelling plaintiff to appear for various MRIs

and issuing so ordered subpoenas duces tecum to Dr. Michael Gerling, Spine Care NYC, The

Gerling Institute Center for Musculoskeletal and Neurological Care, Lenox Hill Radiology,

Hudson Regional Hospital, New York Sports & Joints, Surgicore Surgical Center, Dr. Scott

Katzman, Mountain Surgery, and Golden Pear Funding. In motion sequence 011, defendants Cape

Church Associates, LLC and Consigli & Associates, LLC move for the same relief. These motions

are consolidated for disposition and are, for the reasons set forth below, denied.

DISCUSSION

“Leave to amend pleadings under CPLR 3025(b) should be freely given and denied only if

there is prejudice or surprise resulting directly from the delay or if the proposed amendment is

palpably improper or insufficient as a matter of law” (McGhee v Odell, 96 AD3d 449, 450 [1st

Dept 2012] [internal citations and quotations omitted]). The proposed amendments are palpably

insufficient as a matter of law. “The unproven allegations of fraud against plaintiff’s … medical

providers in [a] RICO complaint do not, without more, warrant a counterclaim for fraud against

plaintiff,” particularly where, as here, the proposed amended Answers fail to “allege any facts that

plaintiff knowingly made material misrepresentations so as to support a fraud claim” (Linares v

City of New York, 233 AD3d 479 [1st Dept 2024] citing SL 4000 Conn. LLC v. CBRE, Inc., 219

AD3d 417, 418 [1st Dept 2023]). To the extent the movants assert that evidence produced during

discovery undermines or entirely rebuts plaintiff’s claims regarding his accident and injuries, this

goes toward his credibility and provides grounds for cross examination at trial (or, in the latter

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circumstance, a motion for summary judgment) rather than a fraud counterclaim. Neither have

movants alleged facts to support their assertion that they justifiably relied on any misrepresentation

by plaintiff—the fact that the movants have spent money defending themselves in this action does

not establish their justifiable reliance on plaintiff’s claims but, if anything, suggests the contrary.

In light of the foregoing, that branch of movants’ motions which seeks an order vacating

the note of issue and permitting discovery related to their fraud allegations (or permit such

discovery post-note of issue) is also denied (See e.g., Ling v New York Presbyt./Brooklyn

Methodist, 84 Misc 3d 1253(A) [Sup Ct, Bronx County 2024]).

Accordingly, it is

ORDERED that third-party defendant AM Architectural Metal & Glass Inc.’s motion to

amend its Answer is denied; and it is further

ORDERED that defendants Cape Church Associates, LLC and Consigli & Associates,

LLC’s motion to amend their Answer is denied; and it is further

ORDERED that the parties are to appear for a status conference order on April 17, 2025

at 9:30 a.m. in Part 4, 80 Centre Street, New York, NY 10013; and it is further

ORDERED that plaintiff shall, within ten days of the date of this decision and order, serve

a copy of same, with notice of entry, upon all parties as well as the Clerk of the Court (60 Centre

Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119);

and it is further

ORDERED that such service upon the Clerk of the Court 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

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“EFiling” page on this court’s website at the address www.nycourts.gov/supctmanh).

This constitutes the decision and order of the Court.

2/5/2025 DATE HON. JUDY H. KIM, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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