Francis v. Bien-Aime
This text of 2004 NY Slip Op 50601(U) (Francis v. Bien-Aime) is published on Counsel Stack Legal Research, covering New York Supreme Court, Kings County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
| Francis v Bien-Aime |
| 2004 NY Slip Op 50601(U) |
| Decided on June 21, 2004 |
| Supreme Court, Kings County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SHAWN FRANCIS, Plaintiff,
against YANICK BIEN-AIME, J. C. JEAN-BAPTISTE, VALENTIN A. GROUNON and MANITA NAZAIRE, Defendants. J. C. JEAN-BAPTISTE and YANICK BIEN-AIME, Plaintiffs, against VALENTIN A. GROUNON, MANITA NAZAIRE, and TALATA AKHTAR, |
13626/01
Arthur M. Schack, J.
These two actions were joined for trial by order of Hon. Elizabeth Bonina on November 12, 2002 (exhibit D of motion).
In Action 2, defendants Nazaire and Grounon, by motion, request that: the action is restored to the calendar; the default entered against defendant Grounon be vacated and dismissed for lack of jurisdiction; defendant Nazaire is granted leave to amend her pleadings to include various affirmative defenses, counterclaims and cross-claim; the Court grant defendants costs and sanctions against plaintiffs and plaintiffs' counsel for maintaining a frivolous action; a commission is issued to depose co-defendant Akhtar in California; Action 1 is stayed until Aktar is deposed; and, such other and further relief as this Court deems just and proper.
In Action 2, defendant Akhtar, by motion, requests that: this action is restored to the calendar; an order dismissing this action against defendant Akhtar or summary judgment for defendant Akhtar; and, such other further relief that this Court deems just, proper and equitable.
Plaintiffs Jean-Baptiste and Bien-Aime partially oppose the amended notice of motion and the cross-motion.
These lawsuits arise from a motor vehicle accident involving three vehicles at the intersection of Rutland Road and Remsen Avenue, Brooklyn, New York on May 28, 1999. According to the NYPD accident report of P.O. Alfred Burke (exhibit A of motion and exhibit L of cross-motion): Ms. Akhtar, driving her Honda (vehicle #1), was traveling westbound on Rutland Road and had "already stopped for a red light"; Mr. Jean-Baptiste was traveling eastbound on Rutland Road, in a Toyota (vehicle #2) owned by Mr. Ben-Aime; and a livery car Lincoln (vehicle #3), owned by Manita Nazaire and operated by Valentin Grounon, with Shawn Francis as a passenger, was traveling northbound on Remsen Avenue into the intersection with Rutland Road. The police report states that vehicle #3, the livery car, struck vehicle #2, the Toyota, in the intersection and then "veh. #2 was over-turned falling onto veh. #1 which had already stopped for red light." [sic]
In Action 2 plaintiffs' verified bill of particulars, dated October 7, 2003 (exhibit E of cross-motion), their attorney states in Number 4 that "The vehicle driver by Defendant Grounon and owned by Defendant Nazaire struck the Plaintiff's vehicle causing it to overturn onto the Defendant Akhtar's vehicle."
Action 1 plaintiff Francis, the passenger in the livery car, in his examination before trial on February 12, 2003 (exhibit M of motion) testified that the Jean-Baptiste vehicle fell on top of the vehicle heading westbound on Rutland Road (the Akhtar vehicle).
Defendant Grounon, the livery car driver, died in Haiti in December, 1999, more than one year prior to the commencement of the action, as evidenced by his death certificate (exhibit F of motion). Therefore, despite the assertion of service upon Grounon, personal jurisdiction was never obtained against Grouon. See McMullen v Arnone, 79 AD2d 495, 499 (1st Dept 1981); Mayers v Cadman Towers, Inc., 89 AD2d 844 (2d Dept 1982). Even if personal jurisdiction had been obtained over Grounon, the "death of a party divests a court of jurisdiction to conduct
proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a)." Silvagnoli v Consolidated Edison Employees Mut. Aid Soc., 112 AD2d 819, 820 (1st Dept. 1985). The dismissal of Grounon from the action does not prejudice plaintiffs in either Action 1 or [*2]Action 2. Vehicle and Traffic Law § 388 protects the ability of plaintiffs in both actions to continue to pursue damages against defendant Nazaire, the owner of the livery car. While the Court will not grant any costs or sanctions against counsel for Jean-Baptiste and Bien-Aime, it chastises counsel for not dismissing the action against defendant Grounon upon receiving a true translation of his Death Certificate. See Holder v. H. A. N. A. C. Home Services Systems, Inc., 248 AD2d 509 (2d Dept 1998).
Defendant Nazaire is granted leave to amend her answer. The answer originally served by defendant Nazaire was a bare-bones answer, without any affirmative defenses, counterclaims or cross-claims. CPLR § 3025 (b) permits a party to amend their pleadings "at any time" and states that "leave shall be freely given upon such terms as may be just." In Breco Environmental Contractors, Inc., v Town of Smithtown, 307 AD2d 330, 332 (2d Dept. 2003), the Court partially granted defendant's request to add affirmative defenses and counterclaims, holding that "motions for leave to amend pleadings are liberally granted in the absence of prejudice or surprise." In Edenwald Contracting Co., Inc., v City of New York, 60 NY2d 957 (1983), the Court of Appeals, at 959, instructed:Permission to amend pleadings should be "freely given" (CPLR
3025, subd [b]). The decision to allow or disallow allow or disallow the
amendment is committed to the court's discretion. (Murray v. City of New
York, 43 N.Y.2d 400, 404-405.) "Mere lateness is not a barrier to the
amendment. It must be lateness coupled with significant prejudice to the
other side, the very elements of the laches doctrine." (Siegel, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3025:5, p 477.)
In the instant case, nothing in the proposed amended answer (exhibit K of motion) will cause any surprise or prejudice to plaintiffs. The mere fact that amendments come two years late after the original answer was served is not enough to deny leave to amend the answer. See Arcuri v Ramos, 2004 NY Slip Op 04137 (2d Dept May 24, 2004); Quinto v New York City Transit Authority, 2004 NY Slip Op 03999 (2d Dept May 17, 2004); Benton v Kreitzer, 2004 NY Slip Op 03753 (2d Dept May 10, 2004).
However, defendant Nazaire is precluded in her amended answer from asserting affirmative defenses that plaintiffs failed to state a cause of action and plaintiffs failed to obtain jurisdiction. The Appellate Division, Second Department, has held that held that an affirmative defense that a complaint fails to state a cause of action cannot be submitted in an answer but must be part of a motion to dismiss. See Petracca v Petracca, 305 AD2d 566 (2d Dept 2003); Coluccio v R. W. Urbanek, 129 AD2d 551 (2d Dept 1987). In Propoco, Inc. v Birnbaum, 157 AD2d 774 (2nd Dept.
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