Opinion
3629/04.
Decided August 23, 2010.
Hannum, Ferretic, Prendergast Merlino, LLC, New York, New York, Attorney for Plaintiff Carole Dorsainvil, on the Counterclaim.
Allen LaRock, Zohar LaRock, LLP, New York, New York, Attorney for Plaintiff Huston Dorsainvil.
Richard T. Lau Associates, Jericho, New York, Attorney for Defendants.
By notice of motion filed on March 23, 2010, under sequence number eleven, plaintiff Carole Dorsainvil (Carole) moves for an order 1) lifting the stay of this matter and restoring the matter to active status; 2) pursuant to CPLR § 1202 appointing a guardian ad litem for infant plaintiff Beanka Dorsainvil (Beanka); and 3) pursuant to CPLR § 3212 granting plaintiff Carole Dorsainvil summary judgment dismissing the complaint of the infant plaintiff Beanka Dorsainvil based upon her not having suffered a serious injury as that term is defined within Insurance Law § 5102 (d).
No one opposed the instant motion.
BACKGROUND
On February 4, 2004, plaintiffs commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Defendants joined issue by their verified answer with counterclaim dated March 30, 2004. The defendants brought a counterclaim against Carole for her alleged negligent operation of the motor vehicle involved in the underlying accident.
By order of this court dated November 21, 2006, this matter was stayed pursuant to CPLR § 2201 until such time as a guardian ad litem is appointed for the infant plaintiff and new counsel appears on behalf of all plaintiffs.
MOTION PAPERS
Plaintiff Carole's motion papers consist of a notice of motion and affirmation of her counsel annexed to which are seven Exhibits labeled A through G. Exhibit A is a copy of defendants' verified answer and counterclaim as well as a copy of plaintiff Carole's reply to the defendants' counterclaim and plaintiff Carole's demand for a verified bill of particulars from the defendants on the counterclaim. Exhibit B is an order of part 52 of this court, dated June 5, 2007. Exhibit C is a copy of plaintiffs' verified bill of particulars. Exhibit D is a copy of the transcript of the deposition of Carole taken on August 1, 2005. Exhibit E is a copy of the transcript of the deposition of plaintiff Beanka taken on August 1, 2005. Exhibit F is a copy of the affirmed, narrative report of the an independent medical examination of Beanka by Dr. Yuri Brosgol. Exhibit G is a copy of the affirmed, narrative report of the an independent medical examination of Beanka by Dr. Robert Israel.
LAW AND APPLICATION
As a threshold issue, the court reiterates that it set forth two conditions the satisfaction of which would be necessary in order for the stay imposed on November 21, 2006 to be lifted. One condition was that a guardian ad litem be appointed for the infant plaintiff. The other condition was that new counsel appear on behalf of all plaintiffs. New counsel has not appeared on behalf of plaintiff Huston Dorsainvil. Nor has new counsel appeared on behalf of Beanka.
When the court imposed this stay, the law firm of Harmon, Linder, Rugowsky represented all three plaintiffs. Simultaneously, the law firm of Hawkins, Feretic Daly Carole represented Carole in her defense of the counterclaim.
The instant motion was submitted by Vito A. Biundo of the law firm of Hannum, Ferretic, Prendergast Merlino. That this firm appears to be new to the instant litigation as attorneys for Carole does not suffice to merit the lifting of the stay. The court was clear in its order of November 21, 2006, that new counsel must appear on behalf of all plaintiffs in order for the stay to be lifted.
As the stay is still in effect, the instant motion is not properly before the court and is a nullity. It is upon this basis that the court resolves the instant motion. Therefore, the court need not address Carole's application for the appointment of a guardian to represent her daughter Beanka in the instant litigation, nor does the court need to address Carole's application pursuant to CPLR § 3212 for summary judgment dismissing Beanka's complaint.
This opinion could end at this point, however, the court wishes to point out that CPLR § 3212(b) provides as follows: Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
A motion made pursuant to CPLR § 3212 would require the annexing of pleadings under section 3212 (b). "The pleadings" means "a complete set of the pleadings" ( Wider v. Heller , 24 AD3d 433, 805 NYS2d 130 [2nd Dept. 2006]) or "all the pleadings" ( Welton v. Drobniki, 298 AD2d 757, 749 NYS2d 288 [3rd Dept. 2002]).
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 ( Matsyuk v. Konkalipos , 35 AD3d 675 [2nd Dept. 2006]; Wider v. Heller , 24 AD3d 433, 805 NYS2d 130 [2nd Dept. 2006]).
Carole's motion papers did not include a copy of the complaint by which the instant action was commenced. Although no party raised this deficiency in opposition to her motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, Carole's motion for summary judgment dismissing the complaint brought by herself as natural guardian for her daughter could be denied on this basis ( See, Thompson v. Voreign Cars Center, Inc. Et al., 40 AD3d 965 [2nd Dept. 2007]).
Furthermore, the court notes that the instant application is supported in part by the deposition of Beanka Dorsainvil, the infant plaintiff, conducted while she was approximately 10 years old. There is no indication that a swearability hearing was conducted. Thus, at the moment, it is of dubious probative value (See Carrasquillo v. City of New York , 22 Misc 3d 171 [NY Sup. 2009]).
As the court noted in its decision of November 21, 2006, Carole, in her capacity as guardian for her daughter, commenced the instant action for damages due to her daughter's serious personal injuries caused by a motor vehicle accident. Carole was the operator of the motor vehicle in which her infant daughter was a passenger. Carole in her individual capacity previously moved, as she moves here now, to dismiss her daughter's case.
The court also wishes to bring to the attention of the parties that the doctrine of judicial estoppel precludes a party to an action from "inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding" ( See, Hartsdale Fire Dist. v. Eastland Const., Inc. , 65 AD3d 1345 [2nd Dept. 2009] citing Maas v. Cornell Univ., 253 AD2d 1 [3rd Dept. 1999], aff'd. 94 NY2d 87). Furthermore, the application of the doctrine of judicial estoppel does not require entry of judgment ( See, Hartsdale Fire Dist. v. Eastland Const., Inc. , 65 AD3d 1345 [2nd Dept. 2009] citing D L Holdings v. Goldman Co., 287 AD2d 65 [1st Dept. 2001]).
Carole is hereby judicially estopped from moving to dismiss her daughter Beanka's action for damages due to personal injuries.