Greenwald v. Raskin, LLC, II

2023 NY Slip Op 50791(U)

Baruch Greenwald, Plaintiff-Respondent, v. The Raskin, LLC, II, William C. Thompson, Esq. and Jasmin Marshall, Defendants-Respondents. William C. Thompson, Esq. and Jasmin Marshall, Third-Party Plaintiffs-Respondents, Yitzchak Benabou, Doing Business as Kingston Pizza, Kosher, Third-Party Defendant-Appellant.

No. 2021-651 K C

Supreme Court of New York, Second Department

July 21, 2023

Unpublished Opinion

Chartwell Law (Gregg S. Scharaga of counsel), for third-party defendant-appellant.

The Law Offices of Terrence F. Kuhn (Jonathan Gorham of counsel) for defendants-respondents/third-party plaintiffs-respondents.

Bernstone and Grieco, LLP (James M. McGowan of counsel), for plaintiff-respondent. Mark S. Friedlander, for defendant-respondent Raskin, LLC (no brief filed).

PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LOURDES M. VENTURA, JJ

Appeal from an order of the Civil Court of the City of New York Kings County (Sandra E. Roper, J.), entered December 10, 2020. The order denied third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, without costs.

In 2011, plaintiff commenced an action in Supreme Court, Kings County, against defendant The Raskin, LLC, II (Raskin), the owner of 395 Kingston Avenue, Brooklyn, New York (the premises), to recover for personal injuries sustained on August 31, 2011, when he slipped and fell down an interior staircase of that building during the course of his employment. In 2014, plaintiff commenced a second action in Supreme Court, Kings County, against defendants William C. Thompson, Esq., and Jasmin Marshall to recover for personal injuries sustained in the August 31, 2011 accident. At the time of the accident, plaintiff was employed by a tenant of the premises, Yitzchak Benabou, and defendants Thompson and Marshall were the court-appointed temporary receiver and property manager, respectively. The two actions were subsequently consolidated in the Supreme Court, and the Supreme Court issued discovery orders setting deadlines for depositions and for the note of issue to be filed. In December 2015, defendants Thompson and Marshall commenced a third-party action against Yitzchak Benabou, doing business as Kingston Pizza, Kosher (the third-party defendant), alleging causes of action for common-law indemnification and contribution, contractual indemnification, and breach of contract for failure to procure liability insurance. Plaintiff filed a note of issue on May 6, 2016, before third-party defendant served his answer on May 11, 2016.

By notice of motion dated May 25, 2016, defendants/third-party plaintiffs moved to vacate the note of issue, to strike the action from the trial calendar pending the completion of discovery, and for an extension of time to file "dispositive motions." In an order dated June 30, 2016 (Martin Schneier, J.H.O.), the Supreme Court denied the branches of defendants'/third-party plaintiffs' motion seeking to vacate the note of issue and strike the action from the trial calendar. The order did not address the branch seeking an extension of time to file "dispositive motions," but set deadlines for defendants to serve examination before trial demands and for the parties to respond to all outstanding demands.

On July 31, 2017, the action was transferred to the Civil Court pursuant to CPLR 325 (d). Subsequent to the June 30, 2016 order, the parties continued to file motions/ orders to show cause seeking discovery-related relief, first in Supreme Court and then in Civil Court, and both courts continued to extend deposition deadlines. On May 18, 2018, the third-party defendant took plaintiff's deposition. The trial was originally scheduled for June 7, 2018, but was adjourned to August 2, 2018. On August 2, 2018, the trial was adjourned again, with no specific adjournment date. On September 11, 2018, the third-party defendant's counsel served plaintiff with a copy of his May 18, 2018 deposition transcript, and plaintiff returned the executed transcript on October 12, 2018. By notice of motion dated September 19, 2019, the third-party defendant moved for leave to file a late motion for summary judgment and, upon the granting of such leave, for summary judgment dismissing the third-party complaint. By order entered December 10, 2020, the Civil Court (Sandra E. Roper, J.) entertained the motion and denied it.

On appeal and in his original motion papers, the third-party defendant contends, among other things, that he adequately demonstrated good cause for the late filing of his motion for summary judgment, as the note of issue was filed before the third-party defendant filed his answer with significant outstanding discovery, and as the court permitted discovery for two years after the note of issue was filed.

Pursuant to CPLR 3212 (a), a motion for summary judgment "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." In order to demonstrate "good cause for the delay in making the motion," the movant must provide "a satisfactory explanation for the untimeliness" (see Brill v City New York, 2 N.Y.3d 648, 652 [2004]). If the movant fails to establish "good cause" for its late filing, "the court has no discretion to entertain even a meritorious nonprejudicial motion for summary judgment" (Bivona v Bob's Discount Furniture of NY, LLC, 90 A.D.3d 796, 796 [2011] [internal quotation marks omitted]; see Brill v City of New York, 2 N.Y.3d 648; Bargil Assoc., LLC v Crites, 173 A.D.3d 958 [2019]; Espejo v Hiro Real Estate Co., 19 A.D.3d 360 [2005]). "While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment, the movant must establish that the discovery was essential to its motion" (Fuczynski v 144 Div., LLC, 208 A.D.3d 1153, 1155 [2022] [internal quotation marks omitted]). Moreover, even where outstanding discovery is...