Opinion
Index No. 605810/2020 MOT. SEQ. Nos. 002-MD 003-MG
08-04-2021
MARTHA CADENA, Plaintiff, v. TURNER CONSTRUCTION COMPANY and LENDLEASE CONSTRUCTION COMPANY, Defendants.
CANNON & ACOSTA, LLP Attorneys for the Plaintiff COZEN O'CONNOR, P.C. Attorneys for Defendant Turner LendLease Construction Company Defendant Pro.
Unpublished Opinion
CANNON & ACOSTA, LLP Attorneys for the Plaintiff
COZEN O'CONNOR, P.C. Attorneys for Defendant Turner
LendLease Construction Company Defendant Pro.
PRESENT: HON. JAMES HUDSON, Acting Justice of the Supreme Court
HON. JAMES HUDSON, Justice
The motion (seq. no.:002) of the Defendant, Turner Construction Company ("Defendant". "Turner") requests an order of summary judgment pursuant to CPLR Rule 3212.
The motion (seq. no.:003) of the Plaintiff, Martha Cadena ("Plaintiff) requests an order of default judgment pursuant to CPLR §3215(a) against the non-appearing, non-answering Defendant Lendlease Construction Company ("Defendant", "Lendlease").
This is a matter alleging personal injuries suffered by the Plaintiff while in the course of her employment in the Housekeeping Department at Southside Hospital. Bay Shore, New York. The Plaintiff alleges that a storage closet ceiling collapsed while the Plaintiff was accessing supplies, causing her to suffer serious personal injuries which direct consequence resulted in two (2) surgical procedures, pain and suffering. The Plaintiff alleges that at the time of her accident, the Defendants were engaged in construction work at Southside Hospital which caused and/or contributed to the collapsed ceiling.
"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable" (In re Estate of Beckford, 280 A.D.2d 472, 473, 720 N.Y.S.2d 176, 177 [2d Dep't. 2001]). This extreme relief is the "procedural equivalent of a trial and must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Rivers v. Birnbaum. 102 A.D.3d 26, 42, 953 N.Y.S.2d 233, 243 [2dDep't. 2012], quoting Dykeman v. Heht, 52 A.D.3d 767, 796. 861 N.Y.S.2d 732 [2d Dep't. 2008]). "On such a motion, it is not for the court to weigh evidence and assess the credibility of affiants. [The court's] task is simply to determine whether such issues exist" (Gitlin v. Chirinkin, 98 A.D.3d 561, 949 N.Y.S.2d 712 [2d Dep't. 2012]; Dykeman at 769: Tunison v. D.J. Stapleton, Inc., 43 A.D.3d 910. 841 N.Y.S.2d 615 [2d Dep't. 2007]). "...[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof but must affirmatively demonstrate the merit of its claim or defense" (Red River Learning Center, LLC v. ADL Data Systems, Inc., 98 A.D.3d 724, 725-726, 950 N.Y.S.2d 179, 181 [2d Dep't. 2012]). When a party seeks summary' judgment it must affirmatively establish its entitlement as a matter of law, tendering sufficient evidence to demonstrate the absence of a material issue of fact (Voss v. Netherlands Insurance Co., 22 N.Y.3d 728, 785 N.Y.S.2d 448, 8 N.E.3d 823 [2014]; Vega v. Restani Construction Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]; Yun Tung Chow v. Reckitt & Coleman, Inc., 17 N.Y.3d 29, 926 N.Y.S.2d 377, 950 N.E.2d 113 [2011]). ".. .if it is necessary to refer to the extrinsic facts, which may be in conflict, to determine the intent of the parties, there is a question of fact, and summary judgment should be denied" (Castaldi v. Castle Restoration LLC, 66 Misc.3d 1214[A], *2, 120 N.Y.S.3d 720 (Table) [Sup Ct. Suffolk Cty. 2020]; see American Express Bank v. Uniroyal, Inc., 164 A.D.2d 275, 277, 562 N.Y.S.2d 613 [1stDep't. 1990]).
Summary judgment will be denied if the party in opposition shows an issue of fact sufficient to require a trial. Opposing papers must "...raise genuine factual issues" (JP Morgan Chase Bank, N.A. v. Gait Group, Inc., 84 A.D.3d 1028, 1029, 923 N.Y.S.2d 643 [2d Dep't. 2011], quoting Badische Bank v. Ronel Systems. Inc., 36 A.D.2d 763, 321 N.Y.S.2d 320 [2d Dep't. 1971]; Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Leumi Fin. Corp. v. Rickter, 24 A.D.2d 855, 264 N.Y.S.2d 707. aff'd 17 N.Y.2d 166, 269 N.Y.S.2d 409, 216 N.E.2d 579 [1965]; Stagg Toot & Die Corp. v. Weisman, 12 A.D.2d 99, 102, 208 N.Y.S.2d 585, 588 [1st Dept. 1960]).
St. Condominium,
"CPLR [Rule] 3212(f) permits a party opposing a motion for summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated (see Rutherford v. Brooklyn Navy Yard Dev. Corp., 174 A.D.3d 932, 105 N.Y.S.3d 518; Video Voice, Inc. v. Local T. V, Inc., 114 A.D.3d 935, 980 N.Y.S.2d 828). A party seeking denial of a summary judgment motion based upon CPLR [Rule] 3212(f) 'is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant' (Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770. 989 N.Y.S.2d 302; see Boorstein v. 1261 48 96 A.D.3d 703, 704, 946 N.Y.S.2d 200])'" (Pinella v. Crescent St. Corp.,
176 A.D.3d 985, 987. 110 N.Y.S.3d 705 [2d Dep't. 2019]).
"A party should be afforded a reasonable opportunity to conduct discovery prior to a determination of a motion for summary judgment" (Okula v. City of New York, 147 A.D.3d 967, 968. 48 N.Y.S.3d 48 [2d Dep't. 2017]). "The depositions of the parties had yet to occur, and at this stage of the proceedings, the defendants' motion for summary judgment dismissing the complaint and, in effect, all cross claims insofar as asserted against them was premature..." (Vasquez v. Church. 187 A.D.3d 1097, 130 N.Y.S.3d 726, 727 [2d Dep't. 2020]; see also Schlichting v. EMquence Realty, LLC, 116 A.D.3d 689, 690, 983 N.Y.S.2d 291 [2d Dep't. 2014]).
In the case at bar, the Plaintiff avers, and the filed record reflects, that EBTs have yet to be conducted. The Plaintiff asserts that, despite the Affidavit of Defendant's Senior Project Manager ("Affidavit"), (Doc. 37), it is unknown whether the Defendant served as General Contractor ("G.C.") on the Southside Hospital construction project. It is unknown whether the Defendant was the Managing Agent. The determination of the Defendant's status could impart liability to the Defendant despite its denial of responsibility. The Affidavit admits that Turner was on-site at the time the Defendant was injured. There has been no description of Turner's duties and responsibilities at the Project. It is unknown precisely what role the Defendant held in that Project.
At this juncture, it is premature to consider the motion (seq. no.:002) for summary judgment.
The Plaintiff has filed its motion (seq. no.:003) for a default judgment against Defendant Lendlease Construction Company. The Summons and Complaint (doc. 1) were filed on May 27th, 2020. Service was made on Lendlease on June 12th, 2020 (doc. 6). Lendlease has not appeared in this case, nor filed an answer, nor has an attorney filed a notice of appearance on its behalf. Defendant Lendlease is in default and has not moved to vacate that default.
"That a party in default may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint pursuant to CPLR Rule 3211, or otherwise, without successfully moving to vacate his or her default is clear" (US Bank, N.A. v. Orellana. 40 Misc.2d 1201[a] 3, 975 N.Y.S.2d [Table] 2013 WL 3336823 [Sup Ct. Suffolk Cty. 2013]; HSBC Mtge. Bank Corp. v. Morocho. 106 A.D.3d 875, 965 N.Y.S.2d 570 [2d Dep't. 2013]; Deutsche Bank Trust Co. Am. v. Stathakis, 90 A.D.3d 983, 935 N.Y.S.2d 651 [2d Dep't. 2011]; Holubar v. Holubar. 89 A.D.3d 802, 934 N.Y.S.2d 170 [2d Dep't. 2011]; McGee v. Dunn, 75 A.D.3d 624. 906 N.Y.S.2d 74 [2d Dep't. 2011]). A defaulting defendant is deemed to have admitted all of the allegations in the Complaint (HSBC Bank USA v. Simms, 163 A.D.3d 930, 81 N.Y.S.3d 517 [2d Dep't. 2018]).
The [Plaintiff] has successfully demonstrated that his motion is unopposed (see Deutsche Bank Natl. Trust Co. v. Islar, 122 A.D.3d 566. 996 N.Y.S.2d 130 [2d Dep't. 2014]; Plaza Equities, LLC v. Lamberti. 118 A.D.3d 688, 986 N.Y.S.2d 814 [2d Dep't. 2014]; Jessabell Realty Corp. v. Gonzalez, 116 A.D.3d 908, 985 N.Y.S.2d 897 [2d Dep't. 2014]).
When a [defendant] fails to oppose a matter advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the court (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667, 330 N.E.2d 624 [1975]; Madeline D Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dep't. 2012]; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dep't. 2010]).
The Plaintiff has successfully demonstrated that Defendant Lendlease Construction Company is in default.
Accordingly, it is
ORDERED, that the motion (seq. no.:002) of Defendant Turner Construction Company for summary judgment pursuant to CPLR Rule 3212 against Plaintiff Martha Cadena, is denied; and it is further
ORDERED, that the motion (seq. no.:003) of Plaintiff Martha Cadena for Default Judgment pursuant to CPLR §3215(a) against Defendant Lendlease Construction Company, is granted.
Settle Judgment of Default as against Defendant Lendlease Construction Company.
This Memorandum is also the Order of the Court.