Valdez v AAA Sutter Realty LLC 2023 NY Slip Op 34584(U)
December 15, 2023
Supreme Court, Kings County Docket Number: Index No. 514548/2019 Judge: Ingrid Joseph
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: KINGS COUNTY CLERK 01/05/2024 10:48 AM INDEX NO. 514548/2019 NYSCEF DOC. NO. 159 RECEIVED NYSCEF: 01/05/2024
At IAS Term, At an lAS Part 83 of Term, Part of the Supreme Supreme
Court Court of
of the State of
the State York, New York, of New held in and County of
for the County Kings, at the Courthouse, of Kings, Courthouse, Adams Street,
at 360 Adams Street, Brooklyn, New York, Brooklyn, New
the ---liion the on _l_5._ day
day of '1).e,csM-bAi , 2023.
of 'D.e.-C.'SMchAt 2023.
PRE HON. INGRID
SEN T:HON.
PRESENT: J.S.C.
JOSEPH, J.S.C.
INGRID JOSEPH,
SUPREME COURT SUPREME COURT OF THE
THE STATE
STATE OF NEW YORK
NEW YORK
COUNTY KINGS COUNTY OF KINGS ______________________________________________________ -----------------J( -----------------------------------------------------------------------X MAJ(IMO VALDEZ, MAXIMO VALDEZ,
Plaintiff, Plaintiff,
-against- -against- Index 514548/2019 No.: 514548/2019
Index No.:
DECISION AND ORDER DECISION AND ORDER
AAA REAL TY LLC,
SUTTER REALTY
AAA SUTTER B&F MARKET, LLC, B&F INC.,
MARKET, INC.,
and KEY FOOD STORES
KEY FOOD INC., CO-OPERATIVE, , INC.,
STORES CO-OPERATIVE
Defendants. Defendants.
______________________________________________________ -----------------J( -----------------------------------------------------------------------X The following e-filed papers following e-filed herein:
read herein:
papers read NYSCEF NYSCEF Doc. Nos.:
Doc. Nos.:
No. 2
Motion Seq. No.2 Motion Notice Notice of Support/Exhibits ............................ ...
Motion/Affirmation in Support/Exhibits of Motion/Affirmation 54-67 54 - 67
Affirmation Opposition ................................................................... . Affirmation in Opposition 78 Reply Affirmation/Exhibits ................................................................. . Reply Affirmation/Exhibits 93 - 100
Motion No. 3 Motion Seq. No.3 Notice of Cross-Motion/ Notice of Cross-Motion/Affirmation Support/Exhibits ................... .
Affirmation in Support/Exhibits 71-76 71-76
Affirmation Opposition/Exhibits ..................................................... . Affirmation in Opposition/Exhibits - 110 103 -110
Defendant Defendant AAA Sutter Realty AAA Sutter ("AAA Sutter")
Realty ("AAA moves for an order, Sutter") moves pursuant to CPLR order, pursuant CPLR
3212, 3212, (a) granting
granting it summary
summary judgment
judgment dismissing Maximo Valdez's Plaintiff Maximo
dismissing Plaintiff ("Plaintiff')
Valdez's ("Plaintiff')
complaint and all cross-claims complaint cross-claims against granting summary against it, (b) granting summary judgment cross-claim for judgment on its cross-claim contractual contractual and
and common-law
common-law indemnification indemnification and with respect contribution with
and contribution co~defendants respect to co~defendants
B&F B&F Market,
Market, Inc. ("B&F")
("B&F") and
and Key Food Stores
Key Food Co-Operative, Inc. ("Key Stores Co-Operative, Food"), (c) direc;:ting ("Key Food"), dire<:ting co-de~endants co-de~endants to assume
assume AAA defense and Sutter's defense
AAA Sutter's of it, and indemnification of
and indemnification directing coand (d) directing
defendants to pay defendants pay AAA Sutter's defense AAA Sutler's defense costs attorneys fees (Mot.
costs and attorneys (Mot. Seq. B&F aq.d No. 2). B&F
Seq. No.2). af?d
Key Food
Food opposes
opposes the
the portion
portion of
of AAA Sutter's motion
AAA Sutter's seeking summary motion seeking crossjudgment on its crosssummary
judgment
claims and claims and for an order them to assume directing them
order directing assume AAA Sutter's defense AAA Sutter's cross on defense cross
defense and for defense
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the grounds that the grounds that the motion procedurally defective.
motion is procedurally defective. In his Plaintiff opposes cross-motion,n, Plaintiff his cross-motio opposes AAA Sutter's AAA Sutter's motion
motion as procedurally
procedurally defective basis that defective and on the basis cede its duty cannot cede
that it cannot its to its
duty to
tenant tenant and
and seeks
seeks to strike
strike its answer
answer for its failure any discovery provide any
failure to provide No. 3).
(Mot. Seq. No.3).
discovery (Mot.
In this
this negligence
negligence action,
action, Plaintiff
Plaintiff alleges that he sustained alleges that injuries on May sustained injuries 2019, 25, 2019,
May 25,
when when he
he was
was thrown from his bicycle thrown from bicycle after encounteredd a defective after it encountere portion of defective portion pavement in aa of pavement
parking lot, which parking lot, which was located at 1214 Sutter was located Avenue in Brooklyn, Sutter Avenue Brooklyn, New Plaintiff avers York. Plaintiff
New York.
that the that the parking AAA Sutter owned by AAA
parking lot is owned and was Sutter and being used was being various tenants, used by various including tenants, including
Key Key Food.
Food. Plaintiff
Plaintiff filed
filed his Note
Note of
of Issue (NYSCEF Doc June 22, 2021 (NYSCEF
Issue on June AAA 51 ). AAA
Doc No. 51).
Sutter filed its motion Sutter motion on November (NYSCEF Doc November 21, 2021 (NYSCEF Doc No. opposition was and opposition
No. 54) and filed was filed
on May
May 4, 2022, along with 2022, along with Plaintiffs cross-motionn (NYSCEF Plaintiffs cross-motio (NYSCEF Doc No. 71, 78).
Doc No.
Before Before the Court addresses the Court merits of addresses the merits AAA Sutler's of AAA Sutter's motion, must first determine motion, it must determine whether whether it is procedurally procedurally proper. Plaintiff, B&F Here, Plaintiff,
proper. Here, B&F and Food contend and Key Food AAA Sutter's that AAA
contend that Sutter's motion is untimely motion untimely because because it was notnot filed within days of within 60 days the filing of the of the Note filing of Issue.
of Issue.
Note of
AAA Sutter AAA Sutter alleges
alleges that
that the
the parties
parties agreed extend the deadline agreed to extend motions for summary filing motions
deadline for filing summary judgment judgment to 120 days
days after
after the Note
Note of
of Issue claims is reflected which it claims
Issue is filed, which proposed reflected in the proposed final pre-note final order that pre-note order that was
was not lly filed. The electronically
not electronica Final Pre-Note The Final Order issued Pre-Note Order issued by Justice by Justice
Knipel does not Knipel does contain language not contain language regarding regarding this extended deadline this extended (NYSCEF Doc deadline (NYSCEF No. 48).
Doc No. 48).
As an initial As initial matter,
matter, "the
"the court may set a date after court may which no [summary after which judgment] motion [summary judgment] motion may be made" may made" (CPLR
(CPLR 3212 [aD. In Kings 3212 [a]). County, unless Kings County, defendant is the unless a defendant City of the City York,
New York, of New
motions motions for summary
summary judgment
judgment must made within must be made days of within 60 days the filing of the of the
filing of Note of
the Note Issue
of Issue
and this and deadline "may
this deadline "may only extended by the Court only be extended Court upon good cause upon good (Kings County shown" (Kings
cause shown" County Supreme Court Supreme Court Uniform Civil Term Uniform Civil Term Rules, Rules, Part [emphasis added];
Rule 6 [emphasis
Part C, Rule added]; see also CPLR see also CPLR
3212 [a]). 3212 [aD. The
The movant
movant must
must proffer cause for the delay "good cause
proffer a "good motion-a making the motion-a
delay in making
satisfactory explanation satisfactory untimeline ss-rather than explanation for the untimeliness-rather simply permitting than simply meritorious, permitting meritorious,
nonprejudicial nonprejudicial filings,
filings, however
however tardy" (Brill v City tardy" (Brill of New City of 648, 652 [2004]).
NY3d 648,
New York, 2 NY3d [2004]).
Accordingly, Accordingly, without
without a showing
showing of
of "good untimely summary delay, an untimely
cause for the delay,
"good cause judgment summary judgment
motion motion must
must be denied
denied without on of consideration
without considerati merits" (Kuyenova of the merits" Supermarket, (Kuyenova v R & M Supermarket,
215 AD3d Dept 2023]
AD3d 940, 941 [2d Dept citations omitted]).
[internal citations
2023] [internal omitted]).
Though the parties Though parties may have have agreed
agreed to extend
extend this "the court deadline, "the
this deadline, court has exclusive the exclusive
has the
authority to extend authority extend the
the statutory
statutory deadline;
deadline; mutual
mutual agreement of the
agreement of parties without the parties approval court approval
without court
will will not suffice" (Coty
not suffice" (Coty v Cnty. of Clinton, 42 AD3d of Clinton, Dept 2007];
612, 614 [3d Dept
AD3d 612, St.
Bennett vv St.
2007]; see Bennett
2
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John's John's Home, 128 AD3d
Home, 128 Dept 2015], [4th Dept
AD3d 1428, 1429 [4th aff'd 26 NY3d 2015], aff'd ["the court [2015] ["the
NY3d 1033 [2015] court was tion of parties to extend the parties motion for the motion
extend"" the
was not
not required
required to
to accept
accept the express stipulation express stipula of the for summary accepts AAA Sutter'ss argument AAA Sutter' that it argument that was
it was
summary judgment
judgme nt deadline]).
deadline]). Even
Even if
if the Court accepts
the Court
under was extende deadlinee was parties were the parties
extended,d, the notice since on notice
were on at
since at
under the
the mistaken impression
mistaken impres sion that that the deadlin
least Pre-Note Order was entered Order was NYSCE F, that into NYSCEF, the that the
least April
April 20,
20, 2021,
2021, when
when the
the Final
Final Pre-Note entered into supposed the order, from the yet AAA order, yet Sutter failed AAA Sutter to
failed to
supposed agreed-upon
agreed-upon deadline
deadline waswas missing
missing from
affirmatively purported good argume nts in cause arguments reply papers its reply
in its
affirma tively move
move for relief and
for relief and only
only raised
raised purported good cause papers (see St. (see St. John's Univ. v.
John's Univ. v. Butler Butler Rogers
Rogers Baskett c., 105 AD3d Architects, P. C.,
Baskett Architects, 728, 728 AD3d 728, 728 [2d[2d Dept Dept
2013] [court "provid
"providently
ently exercised discretion in declining exercised its discretion good cause conside r good
declining to consider arguments cause arguments
2013] [court raised citing Cabibe papers"], citing XYZ Assocs., Cabibell v XYZ L.P., 36 Assocs., L.P., 36 AD3d 498, AD3d 498,
raised for the first
for the first time
time in its reply
reply papers"],
498-99 [1st Dept movants failed to move vacate the move to vacate note of the note of issue, failed 498-99 [1st Dept 2007] [noting that 2007] [noting that the movantsfailed issue, failed to seek an motion, and only raised an excuse only raised delay in their delay
excuse for their their to seek an extension
extension of of time
time to file the
the motion, in their reply]). The Second Depart Department
ment has determined that in such determined that Court may the Court
circumstances, the
such circumstances, not may not
reply]). The Second exercisee itsits discret
discretion
ion and conside
considerr the merits,
merits, particularly absencee of the absenc
particularly in the (see St.
surreply (see
of aa surreply St.
exercis John's Univ., 105
105 AD3d
AD3d at 728-29 [internall citations 728-29 [interna Harleysville Ins.
omitted]; Harleysville
citations omitted]; Rosario, Co. vv Rosario,
Ins. Co.
John's Univ., 17 AD3d
AD3d 677, omitted]). It would citations omitted]). improper for would be improper the for the
17 677, 678
678 [2d[2d Dept
Dept 2005] [internall citations 2005] [interna
Court to entertain judgme nt and summary judgment therefore, it must be it must be
Court to enterta in AAA Sutter'ss late AAA Sutter' late motion motion for summary and therefore,
denied. denied.
The cross-motion,11 wherein Plainti ff argues wherein Plaintiff AAA that AAA
argues that
The Court
Court next
next turns
turns to Plaintiffs
Plainti ffs cross-motion, Sutter'ss failure
failure toto provide
provide written discovery written discove warrants the ry warrants striking of the striking answer pursua of its answer CPLR to CPLR
pursuantnt to
Sutter' 3126(3).). Plaintiff 3126(3 contends Plainti ff conten ds that that AAA Sutter has not AAA Sutter written deman responded to written
not responded demands dated January ds dated January
3, 2021, 2 thereby also violating thereby also three court violating three orders court orders
3, 2020,
2020, February
February 28, 28, 2020
2020 andand January
January 5, 2021,2
directingg it
it to
to respond
respond.. Plaintiff
Plainti ff claims
claims that
that this
this amounts willful and amounts to willful behavior.
contumacious behavior.
and contumacious
directin In ted its formal response to Plainti ffs combin ed In its opposition,
its opposit ion, AAA Sutter asserts AAA Sutter asserts that that it submit
submitted formal response Plaintiffs combined
AAA Sutter's
opposition to AAA
arguments in opposition motion for judgmen summaryy judgment.
for summar t.
11 Plaintiffs
Plaintiff s cross-motion
cross-motion also
also contains
contains arguments Sutter's motion Since the Since the Court
Court has
has determined
determined that
that AAA untimely will not address those portions of Plaintiffs 's motion is untimely,
Sutter's motion
AAA Sutter's , it will not address those portions of Plaintiff cross-mo tion. cross-motion. Cts 22 Plaintiffs Particulars were of Particulars dated January were dated 3, 2020 January 3, (NY St
2020 (NY
Plaintif fs Combined
Combined Demands
Demands andand Demand
Demand for Verified
Verified Bill of
and his
St Cts
First
Elec Demands were ental Demands were dated 28, 2020 February 28, 2020 and his First dated February
Elec Filing [NYSCEF]
Filing [NYSCE F] Doc
Doc No.
No. 75).
75). Plaintiffs Supplemental Plaintiff's Supplem
Supplemental Supplemental Demands
Demand s were
were dated
dated January
January 4, 2021 (id.).
(id.).
3
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demands demands on June
June 3, 2022,
2022, after cross-motion was filed.33 Plaintiff after the cross-motion Plaintiff did not file a reply;
however, however, it did file a letter letter ofrejection because the responses of rejection because responses were untimely. 4 were untimely.4
Under Under CPLR
CPLR 3216,
3216, the Court
Court may take
take certain
certain actions,
actions, such
such as striking
striking a pleading,
pleading, where
where
a party
party "refuses
"refuses to obey
obey an order
order for disclosure
disclosure or willfully
willfully fails to disclose disclose information
information which
which
the court
court finds
finds ought
ought to have been disclosed"
have been disclosed" (CPLR (CPLR 3216).
3216). "Actions
"Actions should
should be resolved
resolved on
their their merits
merits whenever possible, and the drastic whenever possible, drastic remedy remedy of
of striking
striking a pleading
pleading or the alternative alternative
remedy of remedy precluding evidence of precluding evidence should should not be employed
employed without
without a clear
clear showing
showing that
that the failure
failure
to comply
comply with
with court-ordered
court-ordered discovery
discovery was willful contumacious" (Rector willful and contumacious" (Rector v City City of
of New
York, 174 AD3d
AD3d 660,
660, 660-61
660-61 [2d Dept
Dept 2019]).
2019]). When
When filing
filing a motion
motion relating
relating to disclosure,
disclosure, .
Section Section 202.7
202.7 of
of the Unform
Unform Civil
Civil Rules
Rules requires
requires "an
"an affirmation
affirmation that
that counsel
counsel has
has conferred
conferred with
with
counsel counsel for the opposing party in a good opposing party good faith effort effort to resolve
resolve the issues raised by the motion"
issues raised motion"
(22 NYCRR
NYCRR 202.7).
202.7). This requirement applies This requirement applies to motions motions made
made pursuant
pursuant to CPLR
CPLR 3216
(Anuchina (Anuchina v Marine
Marine Transp. Logistics, Logistics, Inc., 216 AD3d AD3d 1126 [2d Dept
Dept 2023]).
2023]). Here,
Here, Plaintiff's
Plaintiff's
counsel counsel failed
failed to submit
submit such
such affirmation
affirmation attesting
attesting to any good
good faith
faith attempts
attempts to obtain
obtain the
outstanding outstanding discovery.
discovery. Moreover,
Moreover, Plaintiff
Plaintiff never
never moved
moved to compel
compel AAA
AAA Sutler's
Sutter's disclosure
disclosure
prior to moving prior moving to strike answer (Rector, strike its answer AD3d at 661; Odiorne (Rector, 174 AD3d Odiorne v Jascor, Jascor, Inc., 175 AD3d
AD3d
1016, 1016 [4th Dept
Dept 2019]
2019] ["court properly denied ["court properly denied the cross cross motion
motion [to strike
strike the answer]
answer]
because plaintiffs did not because plaintiffs not file a motion motion to compel
compel discovery pursuant to CPLR discovery pursuant CPLR 3124"]).
3124"]).
Accordingly, Accordingly, it is hereby hereby
ORDERED, ORDERED, that
that Defendant
Defendant AAA
AAA Sutter
Sutter Realty
Realty LLC's
LLC's motion
motion (Mot. No. 2) is (Mot. Seq. No.2)
DENIED DENIED as untimely;
untimely; and
and it is further
further
ORDERED, ORDERED, that
that Plaintiff's
Plaintiff's cross-motion
cross-motion to strike (Mot. Seq. No.3)
strik{~(Mot. No. 3) is DENIED DENIED without
without
prejudice. prejudice.
All other
other issues
issues not
not addressed
addressed herein
herein are without
without merit
merit or moot.
moot.
This This constitutes
constitutes the decision order of decision and order of the Court.
Court.
l
Hon. Hon. Ingrid
Ingrid o0 eph, J.S.C.
J.S.C.
Hon. Hon.lngIng i Joseph
Joseph
Supreme urt Supreme urtJustice
Justice
The Court 3 The Court also notes that also notes that AAA
AAA Sutter
Sutter filed
filed its response
response to Plaintiffs Demand for Verified Plaintiffs Demand Verified Bill Bill of Particulars on
of Particulars
June I, 2022 (NYSCEF June 1,2022 (NYSCEF Doc No. 83).
Doc No.
4 NYSCEF 4 NYSCEF DocDoc No.
No. 92.
4
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