Chavarria v. 2709-11 Coney Island Ave. LLC
| Citation | 2009 NY Slip Op 33236 |
| Decision Date | 23 December 2009 |
| Docket Number | Motion Seq. No.: 2,Motion Cal. Nos.: 10,Motion Cal. Nos.: 9,Motion Seq. No.: 3,Third Party Index No.: 350116/09,Index No.: 10669/07 |
| Court | United States State Supreme Court (New York) |
| Parties | FREDDY CHAVARRIA and CARMEN CHAVARRIA, Plaintiffs, v. 2709-11 CONEY ISLAND AVENUE, LLC, SIMON LINETSKY, K & L CONSTRUCTION MANAGEMENT OF NEW YORK, INC., LEON MIKHLIN, MIKHLIN HOLDINGS, INC., Defendants. 2709-11 CONEY ISLAND AVENUE, LLC, SIMON LINETSKY, K & L CONSTRUCTION MANAGEMENT OF NEW YORK, INC., MIKHLIN HOLDINGS, INC., and LEON MIKHLIN, Third-Party Plaintiffs, v. J & S NY DEVELOPMENT, INC., Third-Party Defendant. |
The following papers numbered 1 to 17 read on this motion by defendants/third party plaintiffs for an order, pursuant to CPLR § 3212(a), granting them leave to file the within motion six days beyond the 120-day deadline, and for summary judgment and dismissal of all of plaintiff's causes of action against each and every defendant, pursuant to CPLR §3212, as well as the time to conduct discovery in the third-party action [Motion No. 9]; on this cross motion by plaintiff for summary judgment on the issue of liability and an immediate trial on the issue of damages; and the following papers numbered 1 to 9 read on this motion by third-party defendant J&S NY Development, Inc., for and order: (1) pursuant to CPLR §§ 407 and 603, severing the third party action from the main action as the third party defendant was only recently brought into this lawsuit and no discovery with respect to the third party action has been completed, or in the alternative; (2)pursuant to §2201, staying the trial of this matter currently scheduled for September 21, 2009, to allow the third party defendant to obtain all necessary discovery; and (3) pursuant to CPLR §2004, extending its time to file dispositive motions after completion of discovery.
Notice of Motion-Affidavits-Exhibits..................................... 1-4
Notice of Cross Motion-Affidavits-Exhibits............................... 5-8
Plaintiff's Affirmation in Opposition to Motion......................... 9-12
Defendants' Affirmation in Opposition to Cross-Motion and in
Reply-Exhibits.................................................................. 13-15
Plaintiff's Affirmation I Reply..................................................... 16-17
Notice of Motion-Affidavits-Exhibits..................................... 1-4
Plaintiff's Affirmation in Support............................................... 5-6
Affirmation in Opposition-Exhibits............................................ 7-9
Upon the foregoing papers, it hereby is ordered that the motions and cross-motion are determined as follows:
This is a Labor Law action, commenced on April 24, 2007 and July 14, 2007, 1 pursuant to sections 200, 240(1) and 242(6), to recover damages for personal injuries arising out of an accident involving a motor vehicle that occurred on November 9, 2006, during the course of the employment of plaintiff Freddie Chavarria ("plaintiff") by third-party defendant J&S NY Development, Inc., the concrete and block subcontractor at a construction site located at 2709-11 Coney Island Avenue, Brooklyn, New York, that was owned by defendant/third-party plaintiff 2709-11 Coney Island Avenue, LLC ("2709-11 Coney Island Avenue"), and for which defendants/third-party plaintiffs K & L Construction Management of New York, Inc. ("K & L Construction Management") and Mikhlin Holdings, Inc. ("Mikhlin Holdings") were contracted to construct a building; defendant/third-party plaintiff Simon Linetsky ("Linetsky") is the president of K & L Construction Management and defendant/third-party plaintiff Leon Mikhlin ("Mikhlin") is the president of Mikhlin Holdings, both of whom were signatories to the contract. In February 2009, defendants/third-party plaintiffs (collectively "defendants") commenced a third party action against plaintiff's employer, J&S NY Development, Inc. It is upon the foregoing that defendants now move for an order granting them leave to file the within motion six days beyond the 120-day deadline, and for summary judgment anddismissal of all of plaintiff's causes of action against each and every defendant, as well as the time to conduct discovery in the third-party action. Plaintiff cross moves for summary judgment on the issue of liability and an immediate trial on the issue of damages. J&S NY Development, Inc., moves for an order severing the third party action from the main action, on the ground that it was only recently brought into this lawsuit and no discovery with respect to the third party action has been completed, or in the alternative, for an order staying the trial of this action to allow the it to obtain all necessary discovery, and extending its time to file dispositive motions after completion of discovery.
On or about June 27, 2006, Mikhlin Holdings, as "owner," and K & L Construction Management, as "contractor," entered into a written "Subcontractor Agreement" with J & S NY Development, as "subcontractor," pursuant to which J & S NY Development was to perform specified concrete work in connection with the erection of a foundation for two buildings at the construction site located at 2709-11 Coney Island Avenue, Brooklyn, New York. According to his deposition testimony, plaintiff, as an employee of J & S NY Development, drove a truck, placed rebar and concrete, and worked as general laborer, under the supervision of the foreman, Mr. Ho, who was also an employee of J & S NY Development. As a driver, plaintiff drove a company van from his home, picked up other workers and took them to the job site; the van also was used to transport materials or equipment to and from job sites. On the day of the accident, plaintiff was instructed by Mr. Ho to get the van, which was parked two blocks away from the job site, drive the van to the sidewalk location where the disassembled scaffold had been placed, and to load the scaffold into the van for transport to another job site, as the work requiring a scaffold at the 2709-11 Coney Island Avenue project had been completed. Plaintiff, who together with Mr. Ho loaded the scaffold into the van, sustained injury when Mr. Ho entered the van and backed it up, pinning plaintiff between the rear bumper of the van and the front of the SUV parked behind the van.
Mikhlin, president of Mikhlin Holdings and a member of K & L Construction, testified at his deposition that Mikhlin Holdings performed financial supervision over the 2709-11 Coney Island Avenue project, and K & L provided construction supervision, and that J & S NY Development was contracted to install a foundation and structural steel for which the scaffold was delivered, installed and removed by employees of J & S Development. Linetsky, the president of K & L Construction, testified that his company hired the subcontractors, provided supervision, and that he visited the job site once or twice per week to observe the progression of the job, as did Mikhlin.
Defendants move to extend their time to file a summary judgment motion, which was filed six days after the 120-day window for the filing of such motions. CPLR 3212(a) provides that motions and cross-motions for summary judgment shall be made no later than 120 days after the filing of the note of issue, except with leave of court on "good cause" shown. Under the standardannounced in Brill v. City of New York, 2 N.Y.3d 648 (2004), leave to file a late motion for summary judgment under CPLR 3212(a) requires a showing of a satisfactory explanation for the delay in filing the motion. "Where, as here, no deadline is set by the court for the making of summary judgment motions, no such motion may be made more than 120 days after the filing of the note of issue except with leave of court on good cause shown." Tower Insurance Company of New York v Razy Associates, 37 A.D.3d 702 (2nd Dept. 2007)[citations omitted]); Paterno v. CYC, LLC, 46 A.D.3d 788 (2nd Dept. 2007). "Good cause" requires a satisfactory explanation for the untimeliness of the motion rather than permitting a late motion simply because it has merit and the adversary is not prejudiced. See, Brill v City of New York, supra; Miceli v State Farm Mut. Auto Ins. Co., 3 N.Y.3d 725, 726-727(2004); Tower Ins. Co. of New York v. Razy Associates, supra; Soltes v 260 Waverly Owners, 42 A.D.3d 565 (2nd Dept. 2007). Although the trial court has discretion in determining whether to consider a motion for summary judgment made more than 120 days after the filing of a note of issue [(Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129 (2000)], in the absence of a "good cause" showing, a late summary judgment motion may not be considered, even if it appears to have merit and the delay has not prejudiced the adversary.
The Note of Issue in the instant case was filed January 14, 2009, prior to the completion of discovery; May 14, 2009, which was 120 days from the date of filing of the Note of Issue, was the deadline date for the filing of summary judgment motions. However, following the filing of the Note of Issue, several dispositions were held, including the March 9, 2009 deposition of Mikhlin and the May 1, 2009 deposition of Linetsky. Defendants allege that the six day delay of their filing of the summary judgment motion was due to their inability to timely obtain from plaintiff the deposition testimonies of Mikhlin and Linetsky, which were needed for the summary judgment motion, notwithstanding the diligent efforts of their attorneys.
This Court finds that defendants have demonstrated "good cause" for failing to move for summary judgment within 120 days of the filing of the note of issue since discovery issues relevant to the motion were outstanding at the time of...
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