Walters v. Trump Vil. Apts. Two Owner LLC

2024 NY Slip Op 30322(U)

• Court: New York Supreme Court, Kings County
• Decided: January 25, 2024
• Status: Unpublished

Opinion

Walters v Trump Vil. Apts. Two Owner LLC 2024 NY Slip Op 30322(U) January 25, 2024 Supreme Court, Kings County Docket Number: Index No. 519739/2018 Judge: Francois A. Rivera 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 01/26/2024 12:04 PM INDEX NO. 519739/2018 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 01/26/2024

At an IAS Term, Part 52 of the Supreme Court of the·-· _,. · State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 25th day of January 2024

HONORABLE FRANCOIS A. RIVERA ------- ----------------------------------------------------------------X E_RNEST WALTERS,

Plaintiff, Index No. 519739/2018 -against- DECISION & ORDER TRUMP VILLAGE APARTMENTS TWO OWNER.LLC and APARTMENT MANAGEMENT ASSOCIATES LLC,

Defendants. - •. ---_•.!:·: ~ -. - -.-- --. >'·---- --- .----------------------------------------------X _· • :.Recitation, as required by CPLR §2219 [a], of the papers considered on the notice of motion filed on February 2; 2023, under motion sequence three, by defendants Trump Village Apartments Two Owner LLC and Apartment Management Associates LLC (hereinafter the movants) for an order: (1) pursuant to CPLR §3212 granting summary judgement in their favor on the issue of liability and dismissing.the·verified ~omplaint of .. d plaintiff Ernest Walters; and (2) pursuant to CPLR § 3126 (2) precluding the plaintiff from offering any evidence or testimony adduced from his children and grandchildren .in .... •-. , ... L opposition to the instant motion and at the time of trial. The motion is opposed.

-Notice of motion -Statement of material facts -Affirmation in support Exhibits A-H -Affirmation in opposition -Counter statement of material facts ~Affirmation in reply

BACKGROUND

On October 1, 2018, plaintiff commenced the iI_1stant action for damages for personal

injury by filing a summons and verified complaint with the Kings County Clerk's office. On. Page 1 of 4

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November 3, 2018, the defendants joined issue by interposing and filing a joint verified_

answer. On October 6, 2022, the plaintiff filed a note of issue.

Plaintiffs verified complaint and bill of particulars alleges the following salient ~acts.

On August 10, 2016, plaintiff was caused to slip and fall (hereinafter the subject accident) on

a slippery condition on the interior staircase ofthe_premises located at 3000 Ocean Parkway,

County of Kings, State of New York. The premises is owned by defendant, Trump-Village

Apartments Two Owner LLC, and managed by defendant Apartment Management

Ass_ociates LLC. The premises is a multiple residential dwelling, and the plaintiff is a

resident of apartment 9M where he resides with his grandchildren. The defendants were

negligent in the ownership operation and management of the subject pr·emises by allowing

the unsafe condition to exist. The defendants' negligence caused the subject accident and the

plaintiffs physical injuries.

LAW AND APPLICATION

Under Kings County Supreme Court Unifonn Civil Term Rules, part C, rule 6, a party

is required to make its motion for summary judgment no more than 60 days after the note of

issue is filed, unless it obtains leave of the court on good cause· shown (Popalardo v. Marino,

83 AD3d I 029, I 03 0 [2d Dept. 2011]; see Kennedy v. Bae, 51 ADJ d 980, 981 [2d Dept.

2008]; Gonzalez v. Pearl, 179 AD3d 645[2d Dept 2020]). The Court of Appeals _has stated

that a showing of good cause for the delay in filing a motion for summary judgment is

required by CPLR 3212(a). See Brill v. City ofNew York, 2 NY3d 648,652 [2004]; See

Matter of Gilmore, 131 AD3d 1058 [2d Dept. 2015]).

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Plaintiff filed a note of issue on October 6, 2022, and the defendants made the instant

motion for summary judgment on February 2, 2023. Defendant's motion for summary

judgement is denied as untimely. The motion for summary judgement was made more than

60 days past the filing of the note of issue and the defendants failed to provide good cause

for the untimely motion pursuant to Brill v. City of New York, 2 N.Y.3d 648 (2004]).

The defendant also seeks an order pursuant to CPLR 3126 (2) precluding plaintiff

from offering any evidence and or testimony adduced from his children and grandchildren in

opposition to the instant motion and at the time of trial. Pursuant to CPLR 3126, a court may

issue an order prohibiting a disobedient party ... from producing in evidence ... items of

testimony or striking out pleadings as a sanction against a party who refuses to obey an order

for disclosure or willfully fails to disclose information which the court finds ought to have

been disclosed (Castillo v. Charles, 210 A.D.3d 6-'.?5, 626 [2 nd Dept 2022]). Pursuant to 22

NYCRR 202.7(a), a motion relating to disclosure must be accompanied by an affirmation

that counsel has conferred with counsel for the opposing party in a good faith effort to

resolve the issues raised by the motion. The affirmation shall indicate the time, place and

nature of the consultation and the issues discussed and any resolutions or shall indicate good

cause why no such conferral with counsel for opposing parties was held (22 NYCRR

202. 7[c]). Failure to provide an affirmation of gooq faith which substantively complies with

22 NYCRR 202.7(c) warrants denial of the motion (Winter v. ESRT Empire State Bldg.,

LLC, 201 A.D.3d 842, 843-44 [2nd Dept 2022]).

The Court need not address that branch of the motion by the defendants to preclude

evidence and or testimony adduced from the plaintiffs children and grandchildren in

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opposition to the instant motion. The plaintiff has opposed the motion on procedural

grounds and did not offer any evidence or te~timony adduced from his children or

grandchildren.

The request to preclude this type of evidence at trial is denied because the defendants

did not submit an' affirmation of their good faith efforts to resolve the disclosure dispute as

required by 22 NYCRR 202.?(a) and (c). Moreover, the defendants.' submission did no_t_

demonstrate that the plaintiff or the plaintifr s children or grandchildren willfully or

contumaciously refused to comply with an order to disclose.

CONCLUSION

· The branch of the motion by defendants Trump Village Apartments Two Owner LLC

and Apartment Management Associates LLCfor an order pursuant to CPLR §3212 granting

summary judgement in their favor on liability and dismissing the ·complaint is denied ~s

untimely.

The branch of the motion by defendants Trump Village Apartments Two Owner LLC

and Apartment Management Associates LLC for an order pursuant to CPLR § 3126 (2)

precluding plaintiff from offering any evidence and/or testimony adduced from his children

and grandchildren in opposition to the instant motion and at the time of trial is denied.

The foregoing constitute_s the decision and order of this Court.

ENTER:

J.S.C.

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