Patel v. N.Y.C. Transit Auth.
| Citation | 2022 NY Slip Op 51323 (U) |
| Decision Date | 30 December 2022 |
| Docket Number | Index No. 526069/2018 |
| Parties | Rajan Patel, Plaintiff, v. New York City Transit Authority, METROPOLITAN TRANSIT AUTHORITY, GREGORY L. KING AND TRANSIT SERVICE SUPERVISOR ANTHONY HARDEN, Defendants. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY, GREGORY L. KING, AND TRANSIT SUPERVISOR ANTHONY HARDEN, Third-Party Plaintiffs, v. 11 WAVERLY PUB LTD. INDIVIDUALLY AND D/B/A JOSIE WOODS PUB, JOHN DOES 1-10, INDIVIDUALS EMPLOYED BY 11 WAVERLY PUB LTD. WHOSE NAMES ARE NOT KNOWN, 324 7TH AVENUE REST. CORP., INDIVIDUALLY AND D/B/A AS MUSTANG SALLY'S SALOON, 324 7TH AVENUE, LLC, INDIVIDUALLY AND D/B/A MUSTANG SALLY'S SALOON, AND JOHN DOES 11-20, INDIVIDUALS EMPLOYED BY 324 7TH AVENUE REST. CORP. AND/OR 324 7TH AVENUE, LLC, Third-Party Defendants. |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
Recitation as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers NYSCEF Numbered
Notice of Motion/Cross Motion/Order to Show Cause and
Affidavits (Affirmations) Annexed 153-177
Opposing Affidavits (Affirmations) 180, 181-183
Upon the foregoing papers, third-party defendant 11 Waverly Pub Ltd. individually and d/b/a Josie Woods Pub (Josie Woods) moves, motion sequence 8, for an order pursuant to CPLR § 2221(e), granting it leave to renew its prior motion for summary judgment, and upon renewal, pursuant to CPLR § 3212 dismissing the third-party summons and complaint.
In this personal injury action, plaintiff allegedly fell from the Utica Avenue subway station platform and was struck by an oncoming train, resulting in his legs being amputated. At the time of his accident, plaintiff was under 21 years of age and allegedly intoxicated.
After interposing their answers, defendants New York City Transit Authority (NYCTA), Metropolitan Transit Authority (MTA), the train conductor, Gregory L. King (King) and Transit Supervisor Anthony Harden (Harden) (collectively, the Transit Parties) commenced a third-party action against Josie Woods operator of Josie Woods Pub, a bar/restaurant, and the other third-party defendants for indemnification and contribution due to third-party defendants' negligence and violations of General Obligations Law (GOL) § 11-101 (the Dram Shop Act) and "New York State Alcohol Beverage Laws." The third-party complaint alleges, among other things, that Josie Woods illegally served plaintiff alcohol several hours prior to his accident, causing his intoxication and either causing or contributing to the accident. As against Josie Woods, the third-party complaint alleges a cause of action for indemnification and contribution, violation of the Dram Shop Act [1], negligent hiring, training supervision, and retention of employees, and common law negligence. Thereafter, Josie Woods answered the third-party complaint, discovery was held, and on December 3, 2021 plaintiff filed a Note of Issue.
Almost four months after the Note of Issue was filed, on March 31 2022, Josie Woods filed a motion, sequence 7, for summary judgment. In its attorney's affirmation in support, Josie Woods contended that "[p]ursuant to CPLR § 3212 and the rules of this Court, this motion is timely." Aff of Angelo J. Bongiorno, ¶ 7, NYSCEF Doc No. 122. Josie Woods did not explicitly proffer an excuse for its late motion. By order dated July 13, 2022, the court denied Josie Woods' summary judgment motion as untimely pursuant to Brill v City of New York, 2 N.Y.3d 648 (2004). The court held that the Kings County Supreme Court Uniform Civil Term Rules, Part C (6) directs that all post-note of issue summary judgment motions be made no later than 60 days after the filing of the note of issue, and that here, the motion was made more than 60 days after such filing without a showing of good cause for the delay.
Josie Woods now moves to renew its summary judgment motion, contending that the new fact that was needed to complete its motion and constituted a good cause for an extension of time was the deposition of a non-party witness, James Stoney (Stoney), held three months after the filing of the Note of Issue. Josie Woods filed its motion as soon as it received Stoney's deposition transcript, 14 days after the deposition was held. Josie Woods argues that Stoney's deposition was material and necessary as the only known witness to the accident and to demonstrate that it was not liable due to the intervening and superseding cause of plaintiff drinking a bottle of alcohol prior to his accident. Josie Woods notes that Stoney testified: (1) that plaintiff was on the subway platform drinking from a liquor bottle in a brown paper bag standing by the edge of the platform when he "nodded off" and fell onto the train tracks, and (2) that Stoney noted a strong odor of alcohol emanating from plaintiff's breath and body, slurred speech, and observed him to be in an intoxicated state just prior to his fall.
Josie Woods concedes that in making its prior motion, it did not explicitly state that Stoney's deposition was the good cause to make its motion, but that in the interest of judicial economy and resolving cases on the merits, the court can make such a deduction. Josie Woods states that in making the underlying motion, it relied upon the Rules for Municipal City Part 22 of the Court, which did not indicate that the time to make the summary judgment motion was reduced from the 120 days under the CPLR to 60 days. Josie Woods contends that under Brill, it has proffered a satisfactory explanation for its untimeliness. In addition, it notes that, unlike in Brill, the motion was not made on the eve of trial.
In opposition, the Transit Parties contend that Josie Woods has failed to meet its burden of raising any new facts or change in the law that would support renewal, or of establishing good cause for renewal of their summary judgment motion. To that end, the Transit Parties argue that Stoney's deposition is not a "new fact" not offered on the prior motion, and that the argument that Stoney's testimony established an intervening and superseding cause was argued before the court and rejected.
"A motion for leave to renew... shall be based upon new facts not offered on the prior motion that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221 § (e)(2) and (3); see also Mooklal v Clermont Farm Corp., 187 A.D.3d 740, 742 (2d Dept 2020); Abrams v Berelson, 94 A.D.3d 782, 783-784 (2d Dept 2012). However, "[t]he requirement that a motion for leave to renew must be based on new facts is a flexible one." Wells Fargo Bank, N.A. v Malek, 199 A.D.3d 1040, 1041 (2d Dept 2021); Rakha v Pinnacle Bus Servs., 98 A.D.3d 657, 658 (2d Dept 2012). The court has discretion to consider renewal based on facts known to the party seeking renewal at the time of the original motion, but there must be a reasonable justification for failure to present such facts upon the original motion. See Carmike Holding I, LLC v Smith, 180 A.D.3d 744, 747 (2d Dept 2020); Dervisevic v Dervisevic, 89 A.D.3d 785, 786-787 (2d Dept 2011); Heaven v McGowan, 40 A.D.3d 583, 586 (2d Dept 2007). "What constitutes a 'reasonable justification' is within the Supreme Court's discretion." Dervisevic, 89 A.D.3d at 787.
"With limited exception..., in Kings County, a party is required to make its motion for summary judgment no later than 60 days after the filing of the note of issue, unless it obtains leave of the court on good cause shown." Torres v Serlin Building Limited Partnership, 208 A.D.3d 1195, 1196 (2d Dept 2022); Gonzalez v Pearl, 179 A.D.3d 645, 646 (2d Dept 2020); Kings County Supreme Court Uniform Civil Term Rules, part C, Rule 6. Here, Josie Woods filed its summary judgment motion more than 60 days, but less than 120 days, after the note of issue was filed. It is undisputed that Josie Woods did not explicitly argue that Stoney's post-Note of Issue deposition constituted good cause to extend its time to file a motion. There are also no new facts that occurred subsequent to the filing of the prior motion that would change the court's determination. Nevertheless, the court finds, in its discretion, that Josie Woods offered reasonable justification for failure to present good cause for an extension to move for summary judgment. See Dervisevic, 89 A.D.3d at 786-787. The court finds that the fact that Stoney's deposition occurred after the Note of Issue was filed, and that Josie Woods moved for summary judgment promptly after receipt of Stoney's deposition transcript, supports a finding of good cause for the extension of time, wherein, Josie Woods explicitly relied on the substance of the deposition in its arguments in support of the motion. Cf. Torres, 208 A.D.3d at 1196 ().
In addition, granting renewal under the particular circumstances of this case also supports New York's strong public policy favoring the disposition of cases on the merits. See Strong v Delemos, 172 A.D.3d 940 (2d Dept 2019); Burro v Kang, 167 A.D.3d 694, 697 (2d Dept 2018). Accordingly, the court exercises its discretion and grants Josie Woods' motion to renew its summary judgment motion.
Josie Woods makes three arguments in support of its motion for summary judgment. First, it contends that the Transit Parties as a quasi-municipal agency and a public benefit corporation does not have standing to bring a third-party action against a bar, as they are not the intended beneficiaries of the Dram Shop Act. Josie...
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