Opinion
8417/2009.
Decided May 2, 2011.
Jeffrey A. Rubin Associates, New York, New York, Attorney for Plaintiff.
Bruce A. Torino, Esq, Tornino Bernstein, P.C., Mineola, New York, Attorney for Luna Park Housing Corp.
Yolanda J. Zawisny, Esq., Zawisny Zawisny, P.C., Brooklyn, NY, Attorney for Outdoor Installations.
By notice of motion filed on December 21, 2010, defendant Luna Park Housing Corp., (hereafter "Luna") moves under motion sequence number one, for an order pursuant to CPLR 3212 dismissing the complaint, and all cross-claims asserted against it; and for an order granting summary judgment on liability in its favor as against co-defendant Outdoor Installations, LLC (hereafter "Outdoor") on its claims for, among other things, contractual indemnification.
Plaintiff and Outdoor oppose the motion. Defendant Metric Services, Inc. (hereafter "Metric") has not appeared or opposed the motion.
BACKGROUND
On April 7, 2009, plaintiff filed a summons and verified complaint which alleges twenty-one allegations of fact in support of a cause of action for damages for personal injuries caused by the alleged negligence of defendants Luna and Outdoor. The complaint alleges in sum and substance that on October 2, 2008, plaintiff tripped and fell due to a dangerous condition present upon a public walkway under the control of defendants Luna and Outdoor located near 2814 W. 8th Street, Brooklyn, New York. Outdoor interposed a verified answer dated June 29, 2009. Luna interposed a verified answer dated July 10, 2009.
On March 24, 2010, plaintiff filed a supplemental summons and amended complaint which, among other things, added Metric as a defendant. Luna joined issue by an amended answer dated April 13, 2010. Luna's amended answer asserted thirteen affirmative defenses and cross-claims against co-defendants Outdoor and Metric for indemnification. Neither Outdoor nor Metric has answered plaintiff's supplemental summons and amended complaint. A note of issue was filed on October 25, 2010.
MOTION PAPERS
Defendant Luna's instant motion contains an affirmation of its counsel and eleven annexed exhibits labeled A through K. Exhibit A consists of copies of plaintiff's summons and complaint dated April 7, 2009; and supplemental summons and amended complaint dated January 21, 2010. Exhibit B consists of copies of Luna's answer dated July 9, 2009 and amended answer to the amended complaint dated April 13, 2010. Exhibit C consists of copies of Outdoor's answer to the complaint dated June 29, 2009. Exhibit D consists of a copy of plaintiff's verified bill of particulars dated August 3, 2009. Exhibit E consists of copies of plaintiff's first supplemental verified bill of particulars dated September 25, 2009 and plaintiff's second supplemental verified bill of particulars dated June 22, 2010. Exhibit F consists of a copy of plaintiff's deposition testimony transcript taken on January 20, 2010. Exhibit G consists of a copy of Luna's deposition testimony transcript taken on January 20, 2010. Exhibit H consists of a copy of Outdoor's deposition testimony transcript taken on January 20, 2010. Exhibit I consists of copies of Luna's incident report dated October 2, 2008. Exhibit J consists of a copy of the agreement between Luna and Outdoor dated April 23, 2008. Exhibit K consists of a copy of Luna's affidavit by building superintendent Kon Eric Szurant.
Plaintiff opposed the motion with an affirmation of its counsel. Outdoor opposed the motion with an affirmation of its counsel dated February 20, 2011, that it had submitted in reply and in support of its own motion filed on January 20, 2011, under motion sequence number two.
LAW AND APPLICATION
CPLR 3212(a) provides in pertinent part as follows:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion 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.
"A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to," ( Rochester v. Chiarella, 65 NY2d 92, 101, 490 N.Y.S.2d 174, 179 [1985]).
CPLR 3025 (d) provides in pertinent part as follows:
Responses to amended or supplemental pleadings. Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented. Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds.
An amended complaint, once served, supersedes the initial complaint and becomes the only complaint in the case as though the initial complaint was never served ( Pourquoi M.P.S. v. Worldstar Int'l ,64 AD3d 551, 881 N.Y.S.2d 327 [2nd Dept., 2009]; see also Elegante Leasing, Ltd. v. Cross Trans. Svc., Inc. 11 AD3d 650 , 782 N.Y.S.2d 919 [2nd Dept., 2004]; and Titus v. Titus, 275 AD2d 409, 712 N.Y.S.2d 880 [2nd Dept., 2000]). Where a party had not answered a second amended complaint, issue had not been joined and summary judgment was improperly granted ( Valentine Transit, Inc. v. Kernizan, 191 AD2d 159, 594 N.Y.S.2d 180 [1st Dept., 1993]).
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists ( Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts ( Guiffirda v. Citibank, 100 NY2d 72, 760 N.Y.S.2d 397). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 NY2d 923, 597 N.Y.S.2d 653). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez v. Prospect Hospital, supra, 68 NY2d at 324).
Luna seeks summary judgment in its favor on liability and dismissal of the plaintiff's amended complaint. Luna, also seeks summary judgment in its favor on liability and dismissal of any cross-claims asserted against it by its co-defendants as well as summary judgment in its favor on liability on its cross-claims for indemnification against its co-defendants Outdoor and Metric.
On March 24, 2010, plaintiff filed a supplemental summons and amended complaint which, among other things, added Metric as a defendant. In accordance with CPLR 3025[a], plaintiff properly amended the complaint without leave of the court because it was accomplished within twenty days of Luna's original answer dated April 13, 2010.
Luna properly interposed an amended answer to the amended complaint but Outdoor and Metric did not do so. Inasmuch as CPLR 3025 (d) provides that an amended complaint requires an amended answer, issue has not been joined between the plaintiff and defendants Outdoor and Metric ( Valentine Transit, Inc. v. Kernizan, 191 AD2d 159, 594 N.Y.S.2d 180 [1st Dept., 1993]).
As a result, Luna's claim for summary judgment dismissing any cross-claims asserted by either Outdoor or Luna against it is meaningless because neither co-defendant has interposed an amended answer.
The court should have the benefit of all pleading of all parties affected by the movant motion( cf. Bittner v. Town of Union Vale, 72 AD2d 574, 421 N.Y.S.2d 30 [2nd Dept., 1979]; and Koreska v. United Cargo Corp., 23 AD2d 37, 40, 258 N.Y.S.2d 432, 435 [1st Dept., 1965]). Luna seeks affirmative relief in its favor on the issue of liability not only against the plaintiff but also against its co-defendants. Therefore, Luna's motion for summary judgment on liability seeking dismissal of plaintiff's complaint is premature until such time as the co-defendants Outdoor and Metric are permitted to answer plaintiff's amended complaint ( Id.). Similarly, Luna's claim for summary judgment in its favor on all cross-claims asserted against Outdoor and Metric is denied as premature for the same reason.
Luna motion for summary judgment dismissing the complaint, and all cross-claims asserted against it is denied as premature and without prejudice.
Luna's motion for summary judgment finding liability in its favor on its cross-claims for indemnification against co-defendant Outdoor and Metric is also denied as premature and without prejudice.
The foregoing constitutes the decision and order of this court.