Montague v. Maldonado

• Citation: 2020 NY Slip Op 34566 (U)
• Decision Date: 29 May 2020
• Docket Number: Index 701207/2017
• Parties: ALAN MONTAGUE, Plaintiff, v. ELMER MALDONADO, LIDER CONSTRUCTION CORP., MARK BROWN, and VICTOR RICE, Defendants. Motion Seq. No. 11
• Court: United States State Supreme Court (New York)

2020 NY Slip Op 34566(U)

ALAN MONTAGUE, Plaintiff,
v.
ELMER MALDONADO, LIDER CONSTRUCTION CORP., MARK BROWN, and VICTOR RICE, Defendants.

Motion Seq. No. 11

Index No. 701207/2017

Supreme Court, Queens County

May 29, 2020

Unpublished Opinion

Motion Date: February 10, 2020

LOURDES M. VENTURA, J.S.C.

The following numbered papers electronic filed read on this Motion by Defendants Elmer Maldonado and Lider Construction Corp., for an Order: Pursuant to CPLR §2221(e), granting renewal of Co-Defendants' Rice and Brown prior motion for summary judgment; Pursuant to CPLR §2221(d), granting reargument of Co-Defendants' Brown and Rice prior motion for summary judgment; and for such other and further relief as this Court may deem just, proper and equitable under the circumstances.

Papers Numbered

Notice of Motion - Affirmation - Exhibits…..…………… ........... 109 - 116

Opposition to Motion - Affirmation - Exhibits .............................. 117 - 127

Affirmation in Reply - Exhibits ...................................................... 128

Upon the foregoing papers, it is Ordered that Defendants' Motion is determined as follows:

Here, Plaintiff commenced this personal injury action to recover damages for injuries allegedly sustained in a two-car collision which occurred on or about August 2, 2016 on 194th Street at or about its intersection 113^th Road in the County of Queens. At the time of the collision, Plaintiff was a passenger in a vehicle owned by Defendant Victor Rice (hereinafter "Defendant Rice") and operated by Defendant Mark Brown (hereinafter "Defendant Brown"). The second vehicle was owned by Defendant Lider Construction Corp and operated by Defendant Elmer Maldonado (hereinafter "Defendant Maldonado").

Defendants Maldonado and Lider Construction Corp., filed the instant motion seeking pursuant to CPLR §2221, reargument and renewal of Co-Defendants' Brown and Rice motion for summary judgment to allow Defendants' opposition to said motion to be considered in the decision; and upon granting renewal/reargument, dismissing Co-Defendant's motion for summary judgment. Defendants Maldonado and Lider Construction Corp. asserts that on May 3, 2019, Co-Defendants Brown and Rice filed a motion for summary judgment, motion sequence 7, which was originally made returnable on June 17, 2019 was adjourned on consent to July 1, 2019. Defendants Maldonado and Lider Construction Corp. further assert that a second stipulation was entered into adjourning the motion, on consent from July 1, 2019 to August 12, 2019 and that the stipulation provided that any opposition to said motion to be served on or before July 29, 2019. Defendants Maldonado and Lider Construction Corp. further assert that they subsequently e-filed an affirmation in opposition to Co-Defendants' Brown and Rice motion sequence 7 on July 30, 2019. Defendants Maldonado and Lider Construction Corp. further assert that they received the Decision & Order of Judge Modica, dated November 22, 2019, on December 9, 2019 and pursuant to the Order, the Co-Defendants motion sequence 7 was granted without opposition. Defendants Maldonado and Lider Construction Corp further assert that this Court erred in granting co-defendants motion without consideration of Defendants' opposition and that their opposition to the motion was e-filed in advance of the return date. In support of Defendants Maldonado and Lider Construction Corp.'s motion they submit the following evidence: Notice of Motion sequence 7, stipulation of adjournment executed in July 2019, Defendants Maldonado and Lider Construction Corp. affirmation in opposition to Notice of Motion sequence 7, Decision and Order rendered by Honorable Salvatore J. Modica dated November 22, 2019, and Order with Notice of Entry.

Co-Defendants Brown and Rice oppose Defendants Maldonado and Lider Construction Corp.'s motion to renew and reargue Brown/Rice's prior liability summary judgment motion and in opposition to their request that, upon renewal/reargument, the Brown/Rice summary judgment motion be denied. Defendants Brown and Rice further assert that the stipulation of adjournment clearly states that "[a]ny opposition to said motion to be served on or before July 29, 2019." Defendants Brown and Rice further assert that it is undisputed that the co-defendants did not comply with the stipulation as they did not serve their opposition until July 30, 2019 and, based on the foregoing, the codefendants' opposition was untimely and should not be considered by the Court. Defendants Brown and Rice further assert that even if the Court considers Co-Defendants Maldonado and Lider Construction Corp. untimely opposition Defendants Brown and Rice should still be granted summary judgment. In support of Defendants Brown and Rice, they submit the following evidence: WebCivil Supreme-efiled Documents Detail, WebCivil Supreme-Appearance Detail, Notice of Motion sequence 7 with annexed exhibits, and Reply affirmation to Co-Defendants' opposition.

CPLR 2221 governs motions to renew and reargue and CPLR 2221 in pertinent part states:

"(d) A motion for leave to reargue

1. shall be identified specifically as such

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion."

The Second Department, Appellate Division held that "[s]ound jurisprudential principles underlie our determination that the Supreme Court providently exercised its discretion in granting… defendants leave to renew and reargue under the circumstances of this case." Adzer v. Rudin Mgmt. Co., 50 A.D.3d 1070 (2008). The Second Department, Appellate Division further held that "[f]irst, there is a strong public policy which favors a determination on the merits Adzer v. Rudin Mgmt. Co., 50 A.D.3d 1070 (2008) citing (see Storchevoy v. Blinderman, 303 A.D.2d 672, 757 N.Y.S.2d 82) and secondly, we have consistently held that the Supreme Court is possessed of broad discretion in granting renewal, and the application of that discretion and the governing principles are to be flexibly applied to advance the interests of justice" Adzer v. Rudin Mgmt. Co., 50 A.D.3d 1070 (2008) citing (see Heaven v. McGowan, 40 A.D.3d 583, 835 N.Y.S.2d 641; Lafferty v. Eklecco, LLC, 34 A.D.3d 754, 826 N.Y.S.2d 617; Petsako v. Zweig, 8 A.D.3d 355, 777 N.Y.S.2d 765; Gomez v. Needham Capital Group, Inc., 7 A.D.3d 568, 775 N.Y.S.2d 903; Bepat v. Chandler, 2 A.D.3d 764, 769 N.Y.S.2d 731; Matter of Orange and Rockland Util. v. Assessor of Town of Haverstraw, 304 A.D.2d 668, 758 N.Y.S.2d 151).

Here, it is undisputed that the stipulation provided that any opposition was to be filed by on or before July 29, 2019 and that Defendants Maldonado and Lider Construction Corp. filed their opposition on July 30, 2019 after the date provided for in the stipulation. While the Court recognizes that stipulation, and the agreements therein should be upheld, the Court finds that strong public policy favors determinations on the merits; the fact...