Opinion
39948/04
11-30-2007
Ashelie Seye, an infant by her mother and and natural guardian, Jamiylah Abdurrahman Seye, and Jamiylah Abdurrahman Seye, individually, Plaintiffs, v. Ralph Sibbio, et ano., Defendants.
, J.
The following papers number 1 to 5 read on this motion:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-2
Opposing Affidavits (Affirmations)3
Reply Affidavits (Affirmations)5
Affidavit (Affirmation)
Other Papers Memorandum of Law4
Upon the foregoing papers, defendant Ralph Sibbio moves for an order, pursuant to CPLR 5519 (e) (1) and 3212, restoring the instant matter to active status and granting summary judgment dismissing the complaint and all claims as against him.
Although movant asserts that the motion is "pursuant to CPLR §§ 3211 and 3212", movant does not challenge the sufficiency of the complaint and instead seeks summary judgment.
This is an action to recover damages for personal injuries sustained by the infant plaintiff from ingesting lead paint. Plaintiffs allege that the infant plaintiff ingested lead-based paint from July of 2003 until July of 2004 while plaintiffs resided at18 York Avenue in Staten Island. The fact that the infant plaintiff suffered lead poisoning from paint in the subject property is not presently in dispute. Also undisputed is the fact that on March 9, 2004, movant acquired title to the subject property from defendant Roberto Demperio.
Shortly after plaintiff commenced the action, counsel for Sibbio moved to withdraw as counsel. The motion was denied, and the law office appealed and moved for a stay of all discovery. The Appellate Division granted the motion on April 10, 2006, staying all discovery at the trial court level. Thereafter, on October 3, 2006, the Appellate Division upheld this court's denial of counsel's motion to withdraw. Sibbio now seeks restoration of the instant matter to active status, stating that the clerk of this court should "change the court designation from Stayed' to Active'".
CPLR 5519 ("Stay of enforcement") states, in applicable part:
"(e) Continuation of stay. If the judgment or order appealed from is affirmed or modified, the stay shall continue for five days after service upon the appellant of the order of affirmance or modification with notice of its entry in the court to which the appeal was taken. If an appeal is taken, or a motion is made for permission to appeal, from such an order before the expiration of the five days, the stay shall continue until five days after service of notice of the entry of the order determining such appeal or motion. When a motion for permission to appeal is involved, the stay, or any other stay granted pending determination of the motion for permission to appeal, shall:
(i) if the motion is granted, continue until five days after the appeal is determined"
Since the appeal was determined on October 3, 2006, the stay should have expired five days thereafter. Thus, to the extent that the instant matter is not in "active" status, the clerk shall restore this matter to "active" status.
In support of his application for summary judgment, movant states that he became the owner of the subject apartment when Robert Dimperio (sued as Robert Demperio) transferred ownership of the subject apartment to movant by deed dated March 9, 2004. Movant then states that he first became aware of the subject lead condition on July 27, 2004. Movant claims that on that date, he received a City of New York Department of Health and Mental Hygiene Commissioner of Health Order to Abate dated July 23, 2004 concerning the lead paint condition.
Movant argues that, since the subject apartment is not a "multiple dwelling" as that term is defined by Multiple Dwelling Law § 4, movant can be liable for the lead paint poisoning only if he had actual notice of the lead paint condition. Movant then argues that since plaintiffs had vacated the apartment three days before movant received the subject Order to Abate, plaintiffs cannot demonstrate the requisite actual notice. Movant contends that for these reasons, the court should grant the instant motion and dismiss all claims as against him.
In opposition, plaintiffs advance various arguments. Among other things, plaintiffs note that the deposition of Sibbio has not taken place.
The court denies the application for summary judgment with leave to renew after all discovery (including the deposition of Sibbio) is complete. Generally, the Supreme Court should deny as premature a motion for summary judgment made when substantial discovery remains outstanding (CPLR 3212 [f]; Rengifo v City of New York, 7 AD3d 773 [2004]; Yadgarov v Dekel, 2 AD3d 631 [2003]; Campbell v City of New York, 220 AD2d 476 [1995]). A motion for summary judgment is premature when, as here, a defendant has yet to appear for deposition (Whelan v Port Auth of NY and N.J., 19 AD3d 484, 484 [2005]). Also, summary judgment is premature when facts that may support the opposition are, as here, exclusively within the knowledge and control of the moving party and discovery is not complete (Banks v New York City Dept. of Educ., 39 AD3d 787 [2007]; see also Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2006]; Urcan v Cocarelli, 234 AD2d 537 [1996]; Baron v Incorporated Vil. of Freeport, 143 AD2d 792 [1988]).
Lastly, summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2005]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). Since discovery is outstanding, defendants have not demonstrated the absence of triable issues of material fact and are thus not entitled to summary judgment at this juncture (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). In view of the foregoing, defendants' request for summary judgment must be denied with leave granted to renew after all discovery (including the deposition of Sibbio) is complete. All other issues raised by the instant motion are held in abeyance.
In sum, the motion is granted solely to the extent that, if not already done, the clerk of this court shall restore this matter to "active" status, and is otherwise denied with leave to renew once all discovery is complete.
The foregoing constitutes the decision and order of this court.
ENTER,
J. S . C.