Gibbs v. Kings Auto Show Inc.
| Decision Date | 24 March 2015 |
| Docket Number | No. 18236/12.,18236/12. |
| Citation | 15 N.Y.S.3d 711 (Table) |
| Parties | Arlene GIBBS, Plaintiff, v. KINGS AUTO SHOW INC., William Johnson and Gordon Tracey, Defendants. |
| Court | New York Supreme Court |
Hallock & Malerba, PC, Larry Hallock, Esq., Deer Park, for Plaintiff.
Law Office for C. Fred Well, Syosset, for Defendant.
Recitation in accordance with CPLR 2219(a) of the papers considered on the notice of motion of the defendant Kings Auto Show Inc (hereinafter KASI or the movant), filed on October 30, 2014, under motion sequence number two, for an order: (1) dismissing the complaint and all cross-claims brought by the co-defendants William Johnson and Gordon Tracey pursuant to CPLR 3211(a)(1) ; converting the motion to one for summary judgment pursuant to CPLR 3211(c) and then dismissing the complaint and all cross-claims brought by co-defendants William Johnson and Gordon Tracey; and (3) imposing sanctions on plaintiff and her counsel for legal costs, including attorney fees pursuant to pursuant to 22 NYCRR 130–1.1.
On September 10, 2012, plaintiff Arlene Gibbs (hereinafter Gibbs) commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The complaint contains thirty eight allegations of fact in support of a single cause of action for damages for personal injuries. The complaint alleges in pertinent part that on October 4, 2011, Gibbs was a passenger in an automobile operated by Gordon Tracey bearing license plate number EWV 5962. Gibbs was injured when the Tracey vehicle collided with a vehicle operated by William Johnson bearing license plate number FRR 2127. Gibbs claimed that the collision and the serious personal injuries she sustained as a result were due to the drivers respective negligent operation of their vehicles. The complaint also alleges, among other things, that KASI owned the vehicle operated by Johnson (hereinafter the Johnson vehicle) and that Johnson operated the vehicle with KASI's permission and while employed by KASI.
KASI joined issue by verified answer with cross-claims dated June 20, 2013.
The first branch of KASI's motion seeks dismissal of the complaint and all cross claims asserted against it pursuant to CPLR 3211(a)(1). With regard to dismissal of the complaint, there is no dispute that KASI joined issue by its answer with cross-claims dated June 20, 2013. This branch of its motion, however, must be denied pursuant to CPLR3211[e] as untimely, as it was not made within the time period in which KASI was required to serve an answer and an extension of time to make the motion was not requested by KASI or granted by the court (see Portilla v. Law Offices of Arcia & Flanagan, 125 A.D.3d 956 [2nd Dept 2015] citing CPLR 2004 ; and Lema v. New York Cent. Mut. Fire Ins. Co., 112 A.D.3d 891, 978 N.Y.S.2d 75[2nd Dept 2013] ).
The Court noted the following with regard to KASI's motion to dismiss all cross-claims asserted against it. The motion papers submitted contain no evidence that defendants Johnson and Tracy were served with either the summons and complaint or with KASI's answer with cross-claims. KASI's papers do not annex an answer by either of these defendants and, in fact, are silent on whether these defendants have ever appeared in the action.
“There is no authority for compelling [a court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214(c), the court may refuse to consider improperly submitted papers” (Biscone v. JetBlue Airways Corp., 103 A.D.3d 158, 178, 957 N.Y.S.2d 361 [2nd Dept 2012] ).
In accordance with CPLR 2214(c), KASI must at a minimum, annex a copy of the pleading to its motion which it wants the court to dismiss (Alizio v. Perpignano, 225 A.D.2d 723, 640 N.Y.S.2d 191 [2nd Dept 2013] ).
KASI also seeks an order converting the instant motion to one for summary judgment pursuant to CPLR 3211(c) and then dismissing the complaint and all cross-claims brought by defendants William Johnson and Gordon Tracey. Once again, KASI's motion papers have created an ambiguity by not setting forth whether defendants William Johnson and Gordon Tracey has been served with the complaint or KASI's answer with cross-claim. While KASI's motion infers that they have appeared and answered the complaint with cross-claims asserted against it, there is nothing in the motion papers establishing any of this. It is of course inappropriate to grant summary judgment to KASI under these circumstances. If these defendants did answer the complaint and did assert cross-claims against KASI at the very least their pleading should be part of KASI's submitted papers pursuant to CPLR 2214(c) or CPLR 3212(b).
The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Thompson v. Foreign Cars Center, Inc., 40 A.D.3d 965, 837 N.Y.S.2d 673 [2nd Dept 2007] citing Matsyuk v. Konkalipos, 35 A.D.3d 675, 824 N.Y.S.2d 918 [2nd 2006] ).
Inasmuch as KASI's motion for dismissal of the complaint and all cross claims...
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