Valdez v. AAA Sutter Realty LLC

2023 NY Slip Op 34584

• Court: New York Supreme Court, Kings County
• Decided: December 15, 2023
• Status: Unpublished

Opinion

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 ---lii- on 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 co- and (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 cross- judgment on its cross- summary 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

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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.).

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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.

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