Guzman v. Park Levy LLC
This text of 2020 NY Slip Op 35566 (Guzman v. Park Levy LLC) is published on Counsel Stack Legal Research, covering New York Supreme Court, Bronx County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Guzman v Park Levy LLC 2020 NY Slip Op 35566(U) July 30, 2020 Supreme Court, Bronx County Docket Number: Index No. 34626/2019 Judge: Laura G. Douglas 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: BRONX COUNTY CLERK 08/11/2020 10:18 AM INDEX NO. 34626/2019E NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 08/11/2020
SUPREME COURT OF THE STATE OF NEW YORK Index No. 34626/2019 COUNTY OF BRONX PART6
OSCAR GUZMAN,
Plaintiff, DECISION/ORDER
-against- Present: Hon. Laura G. Douglas PARK LEVY LLC, THE APPLE LAUNDROMAT CORP., J.S.C. IGLESIA PE TECO ST AL REHOBOTH, ULTIMATE CONSTRUCTION NY, INC., WEST LEVY, LLC JAVIER PONTE, JAVED GONDAL, Individually and doing business as ULTIMATE CONSTRUCTION, and ULTIMATE CONSTRUCTION, Individually,
Defendants.
Recitation, as required by Rule 2219(a) of the C.P.L.R. of the papers considered in the review of these motions and cross-motions (Seq. No. I and Seq. No. 2) to dismiss or for summary judgment:
Papers Numbered
Notice of Motion by Defendant Park Levy LLC, Affirmation of Eric R. Horvitz, Esq. dated December 26, 2019 in Support of Motion, and Exhibits (" A" through "M")................... .. . . . . . . . . . . . . . . . . . . . . . .. .... . . . . . . .... . . . . ......... 1
Memorandum of Law by Eric R. Horvitz, Esq. dated December 26, 2019............. 2
Notice of Cross-Motion by Defendant Iglesia Pentecostal Rehoboth, Affirmation of James M. Brown, Esq. dated December 30, 2019, and Exhibits ("A" through "P")..................................................................... 3
Affirmation of Barry Liebman, Esq. dated February 26, 2020 in Opposition to Motion and Exhibits (" ).. .. . .. . .. .. . .. .. .. .. .. .. .. .. .. .. .. .. .. . . .. . .. .. .. . .. .. . .. .. .. . .. .. 4
Reply Affirmation of Lawrence S. Wasserman, Esq. dated June 15, 2020 and Exhibit ("A")....................................................................................... 5
Reply Affirmation of James M. Brown, Esq. dated March 26, 2020................. ... 6
Notice of Motion by Defendant West Levy, LLC, Affirmation of Zena Goldszer, Esq. dated January 2, 2020 in Support of Motion, and
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Exhibits ("A" through "E")..... .... .. . ...... ......... ... ... .. . ... ...... ... .. . .... .. ... . . .... ... 7 Notice of Cross-Motion by Defendant Javier Ponte and Verified Answer dated January 9, 2020..................... .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . ... . . . . . 8
Affirmation of Barry Liebman, Esq. dated February 26, 2020 in Opposition to Motions and Exhibits ("A" through)...................................................... 9
Affirmation of Barry Liebman, Esq. dated February 28, 2020 in Opposition to Cross-Motions and Exhibits ("A" through)............................................. 10
Reply Affirmation of Zena Goldszer, Esq. dated March 12, 2020... .... .. ... . .. ... .... 11
Reply Affirmation of Joseph A. Altman, Esq. dated March 30, 2020 and Exhibits ("A")... . ................................................................................. 12
These motions and cross-motions are consolidated/or purposes of Decision/Order and, upon the fo regoing p apers and afier due deliberation, the Decision/ Order on these motions and cross- motions i as follows:
Defendants Park Levy LLC, Iglesia Pentecostal Rehoboth, West Levy LLC, and Javier Ponte (collectively, "defendants' ) move separately fo r the same reli ef - di smi ssal of the plai ntiffs complaint on the grounds that it is barred by the applicable statute of limitations. The motions and cross-motions are denied. The facts perti nent to a resolution of these motions are undi sputed. T he pla intiff commenced an action in 201 5 in this Cou1t seeking monetruy damages fo r personal injuries purportedl y sustained on May 9, 20 14 following a s lip/trip and fa ll on broken glass and/or debris located at the rear entrance of the premi ses fo r which the vario us defendants allegedl y bore some responsibility. By Order dated June 26 20 19, thi s Court granted the defendants' moti o ns to di smi ss witho ut opposition and di smi ssed the plaintiffs complaint in an Order that reads as foll ows: "The motions to dismiss fi led by Park Levy LLC Iglesia Pentecostal Reho both, Javier Gonda!, U ltimate Construction, & West Levy LLC are granted without oppos iti on. Plaintiff's com plaint is dismissed. Plaintiff' s request for an adjournment is denied. " As recited in the Order, the plaintiff did not submit papers opposing the dism issal motions. A copy of that Order w ith notice of entry was fil ed and served on June 28, 20 19. On December I 1, 20 19 the plaintiff commenced a new action for the same claims by fi ling a summons and complaint.
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The instant motions seeking dismissal on statute of limitations grounds are timely since they were brought prior to the expiration of the defendants' deadline to respond to the new complaint (see CPLR Rule 321 l(e)). The statutory deadline to commence this action was May 9 2017 (see CPLR § 214(5)). Therefore, the de£ ndants have satisfied their initial burden of proving that the time in which to sue has expired (see Bereger v. Stolzenberg, 158 AD3d 738 [2 nd Dept 2018]). The plaintiff then bears the burden of raising a question of fact regarding the applicability of an exception, a tolling period, or a miscalculation of the statutory deadline. The plaintiff does not dispute that this action, on its face, was not filed in time, but contends that the toll ing provision of CPLR § 205(a) applies here and renders the action timely filed. In pertinent part, CPLR § 205(a) does not extend its six-month tolling period for the commencement of a new action to cases where the previous action was terminated by way of dismissal of the complaint for neglect to prosecute the action. In this sense neglect to prosecute includes a failure to diligently complete disclosure (see Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, 5 NY3d 514 [Ct App 2005]). However, the statute requires the judge issuing the ineligible dismissals to "set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation". The defendants do not argue that the newly filed action violated the extension period provided by the statute. The plaintiff contends that this dismissal was not granted upon a review of the merits of the defendants motion seeking penalties for disclosure violations, since the dismissal order was granted without opposition. In addition the plaintiff argues that the dismissal did not set forth the specific conduct constituting neglect or a general pattern of delay by the plaintiff. The defendants contend that the plaintiff cannot benefit from the tolling provision of CPLR § 205 (a), since the underlying order granted dismissal upon motions seeking relief for violations of di sclosure obligations pursuant to CPLR 3126. It is undisputed that the plaintiff failed to submit to a deposition despite several court orders directing him to do so.
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2020 NY Slip Op 35566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guzman-v-park-levy-llc-nysupctbrnx-2020.