Rodriguez v. Langston Condominium

2024 NY Slip Op 33433(U)

• Court: New York Supreme Court, New York County
• Decided: September 27, 2024
• Docket: Index No. 153678/2023
• Status: Unpublished

Opinion

Rodriguez v Langston Condominium 2024 NY Slip Op 33433(U) September 27, 2024 Supreme Court, New York County Docket Number: Index No. 153678/2023 Judge: Mary V. Rosado 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. SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------X INDEX NO. 153678/2023 WALTER RODRIGUEZ, MOTION DATE 09/10/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

THE LANGSTON CONDOMINIUM, GMNY CONSTRUCTION SERVICE INC.,CORE SCAFFOLD DECISION + ORDER ON SYSTEMS INC., MOTION AND CROSS MOTION

Defendant. --------------------X

THE LANGSTON CONDOMINIUM Third-Party Index No. 595043/2024 Plaintiff,

-against-

BHA CONSULTANTS LLC

GMNY CONSTRUCTION SERVICE INC. Second Third-Party Index No. 595243/2024 Plaintiff,

M.D. SCAFFOLDING, INC. Defendant. --------------------X

CORE SCAFFOLD SYSTEMS INC. Third Third-Party Index No. 595262/2024 Plaintiff,

M.D. SCAFFOLDING, INC. Defendant. --------------------.X

153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 1 of 5 Motion No. 001

[* 1] The following e-filed documents, listed by NYSCEF document number (Motion 001) 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 98, 99, 100, 101, 102, 103, 104, 105, 106,107,108,109,110,111,112 were read on this motion to/for AMEND CAPTION/PLEADINGS

Upon the foregoing documents, Defendant/Third-Party Plaintiff Langston Condominium's

("Langston") motion seeking leave to amend its Answer, for an order compelling certain

discovery, and requesting Plaintiff post security, is granted in part and denied in part.

Defendant/Third-Party Plaintiff Core Scaffold Systems Inc.'s ("Core") cross-motion seeking the

same relief is granted in part and denied in part.

L Background

This is an action for alleged personal injuries sustained by Plaintiff as a result of violations

of the New York Labor Law (NYSCEF Doc. 1). Langston now seeks leave to amend its Answer

to assert a counterclaim and an affirmative defense of fraud against Plaintiff. Langston also seeks

to compel responses to their discovery demands. Langston alleges they should be granted leave to

assert these claims because Plaintiff has two prior lawsuits with similar mechanisms of injury.

Langston claims Plaintiffs alleged injuries in those prior lawsuits overlap with the alleged injuries

in this lawsuit. Langston also claims that Plaintiff is treating with several "suspect medical

providers" (NYSCEF Doc. 74 at ,i 12). Core seeks leave to amend the same counterclaim and

affirmative defense in its crossclaim. They also seek a bond in the amount of $10,000 to cover

potential costs should this case be dismissed as frivolous.

Plaintiff opposes. Plaintiff argues the application is premature as discovery remams

ongoing and depositions have not yet occurred. Plaintiff further argues that discrepancies in

medical narratives do not give rise to a colorable fraud claim and therefore Langston and Core

have failed to state a claim for fraud. Plaintiff does not dispute that a bond must be posted, but he

153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 2 of 5 Motion No. 001

[* 2] asks that it be in the statutory amount of $500. Plaintiff also argues that Defendants failed to

support their motions with CPLR compliant affirmations, however Defendants have since

corrected this technical default.

II. Discussion

A. Motion and Cross-Motion to Compel

The motion and cross-motion to compel have been resolved at the preliminary conference

held with the Court on July 24, 2024 (see NYSCEF Doc. 113). To the extent the motions to compel

have not been resolved pursuant to the preliminary conference order, they are denied, without

prejudice, as they were made in violation of Part 33's rules. As the parties were directed at the

preliminary conference, should discovery issues arise they shall e-mail the Court to request a

conference to resolve those issues.

B. Leave to Amend

Leave to amend pleadings is freely granted in the absence of prejudice if the proposed

amendment is not palpably insufficient as a matter of law (Mashinksy v Drescher, 188 AD3d 465

[1st Dept 2020]). A party opposing a motion to amend must demonstrate that it would be

substantially prejudiced by the amendment, or the amendments are patently devoid of merit

(Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co., 298 AD2d 180, 181

[1st Dept 2002]).

For purposes of a motion seeking leave to amend, Defendants have sufficiently alleged

sufficient facts to make out a colorable fraud counterclaim and affirmative defense against

Plaintiff. Plaintiffs numerous accidents which occurred in the same manner, contradictory medical

records, and his involvement with several medical providers who are implicated in a Federal RICO

action.

153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 3 of 5 Motion No. 001

[* 3] C. CPLR § 8501(a)

Defendants' motion requesting Plaintiff post a bond for security of costs in the amount of

CPLR § 850l(a) is granted in part. CPLR § 8501(a) mandates that except where a plaintiff has

been granted permission to proceed as a poor person or is the petitioner in a habeas corpus

proceeding, the Court shall order security for costs if the plaintiff is not a resident of New York

(see also Yarwood v County of Suffolk, 174 AD3d 954 [2d Dept 2019]; Clement v Durban, 147

AD3d 39 [2d Dept 2016]). CPLR § 8503 states that security for costs shall be made in an amount

of five hundred dollars in counties within the City of New York, or such greater amount as shall

be fixed by the Court. It is undisputed that Plaintiff is a resident of New Jersey, and therefore he

is required to post security. However, although Defendants seek the posting of a bond in the

amount of $10,000.00, the Court finds this to be excessive given the lack of any supporting

evidence of these costs. Thus, the Court elects to adopt the statutory requirement of a $500.00

bond.

Accordingly, it is hereby,

ORDERED that Langston's motion and Core's cross-motion seeking leave to amend their

pleadings is granted, and the proposed pleadings annexed to the motion papers (NYSCEF Docs.

75 and 92) shall be deemed served upon service of a copy of this order with notice of entry thereof;

and it is further

ORDERED that Langston's motion and Core's cross-motion seeking Plaintiff to post

security for costs is granted; and it is further

ORDERED that pursuant to CPLR 8501(a) and 8503, plaintiff shall, within thirty (30) days

of service of this Decision and Order, post security for costs in the amount of $500.00, and the

matter is stayed pursuant to CPLR 8502 until plaintiff posts said security; and it is further

153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 4 of 5 Motion No. 001

[* 4] ORDERED that the stay pursuant to CPLR 8502 shall be automatically lifted upon Plaintiff

posting his bond; and it is further

ORDERED that Langston's motion and Core's cross-motion seeking to compel certain

discovery is denied to the extent it has not become moot; and it is further,

ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

9/27/2024 h" V (~ .. ,., JS<. DATE HO~ . MARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 5 of 5 Motion No. 001

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