Opinion
# 2014-050-056 Claim No. 120485 Motion No. M-85419 Cross-Motion No. CM-85464
11-06-2014
DONALD ROZZ v. THE STATE OF NEW YORK
Donald Rozz, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Susan M. Connolly, Assistant Attorney General
Synopsis
The Court denied claimant's summary judgment motion because it was untimely pursuant to CPLR Rule 3212 (a).
Case information
| UID: | 2014-050-056 |
| Claimant(s): | DONALD ROZZ |
| Claimant short name: | ROZZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120485 |
| Motion number(s): | M-85419 |
| Cross-motion number(s): | CM-85464 |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Donald Rozz, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Susan M. Connolly, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 6, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this action, the claimant seeks damages in the amount of $14,613.57 for loss of property, a 2003 Nissan Maxima, alleged to have occurred in a one car accident on the Seaford-Oyster Bay Expressway, also known as Route 135, on October 24, 2009. Claimant asserts in this case, essentially, that debris from a separate auto accident (six days earlier) remained on the roadway of Route 135 on October 24, 2009, causing the subject (October 24, 2009) accident. The specific debris identified by claimant as the alleged cause of the Maxima driver's loss of control and the subject accident was a license plate which claimant asserts was left in the roadway from the accident six days earlier. The gravamen of the instant claim is that defendant was negligent and that such negligence resulted in the claimant's loss of property.
The verified claim herein was filed on October 18, 2011. Defendant answered the claim on November 16, 2011. Initially this case was assigned to Judge Lopez-Summa of this Court. By decision and order filed January 9, 2013, Judge Lopez-Summa denied claimant's motion for a default judgment and for relief pursuant to CPLR §§ 3124, 3126 and 3103. This action was reassigned to the undersigned on January 23, 2013 by order of the Presiding Judge dated January 17, 2013.
This case was conferenced on June 26, 2013 at which time the claimant (self-represented) and defendant's attorney were present. Pursuant to that conference, an order was issued dated June 27, 2013 which directed (inter alia) "that any outstanding disclosure sought by either party or additional disclosure shall by completed prior to the next conference date, September 26, 2013." The defendant served and filed a note of issue on March 11, 2014.
By notice of motion served on July 15, 2014 (filed July 25, 2014), the claimant moves for summary judgment pursuant to CPLR 3212 and for relief relating to discovery pursuant to CPLR 3124 and 3126. Claimant also requests that, pursuant to CPLR 3123, matters of fact set forth in a notice to admit which claimant served be deemed admitted. By notice of cross motion served August 5, 2014 (filed August 7, 2014) the defendant cross-moves for summary judgment dismissing the claim and for an order denying claimant's motion. Both motions were submitted for decision on August 13, 2014.
The claim, inter alia, asserts that claimant is owner of the subject 2003 Maxima. The defendant denies "any knowledge or information sufficient to form a belief" as to this allegation which, statutorily, has the effect of a denial (see CPLR 3018 [a]).
Regarding the claimant's summary judgment motion, because the defendant served its note of issue by mail on March 11, 2014, calculation of the 120-day period for summary judgment motions (see CPLR 3212 [a]) is to be extended by five days pursuant to CPLR Rule 2103 (c) and (b) (2). The Court calculates and finds that the 125th day following service of the note of issue was July 14, 2014 (not, as maintained by claimant, the date of his affidavit, July 15, 2014). The claimant's motion was made beyond the CPLR Rule 3212 (a) mandated outer limit for making such a motion which, notably, the Court of Appeals has regarded strictly (see Brill v City of New York, 2 NY3d 648 [2004]; Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 [2004]; Perini Corp. v City of New York (Department of Envtl. Protection), 16 AD3d 37 [1st Dept 2005). Because it is untimely, the claimant's motion is denied. In any event, notwithstanding great effort the claimant has failed to discharge his initial burden of proof which is to demonstrate prima facie that he is entitled to judgment as a matter of law. In fact, the proof adduced by claimant prima facie (in support of his motion) reflects the presence of issues of fact relating to all elements of claimant's claim starting with the disputed fact of ownership of the subject vehicle; moreover, issues of fact are present relating to whether defendant had a duty and the alleged breach thereof. Such issues require a trial.
The branches of the claimant's motion for relief pursuant to CPLR 3124 and 3126 are denied. At least four months before the instant motion by claimant was made, the defendant filed a note of issue and discovery ended with that action, which claimant did not challenge by a motion to strike (see NYCRR § 206.12 [d]; Huttner v Mayberry, 96 AD2d 527 [2d Dept 1983]; Parato v Yagudaeu, 46 AD3d 332 [1st Dept 2007]). Even if the note of issue had not been filed months before the claimant's present motion, by its order dated June 27, 2013, this Court directed the completion of all discovery by September 26, 2013 and that order stands unimpeached and remains controlling herein; by that measure also the claimant's motion for discovery related relief is untimely. Claimant served a written request for admission of facts dated December 27, 2011. The defendant answered that discovery request in writing on March 21, 2012. To the extent that claimant challenges that response or the timeliness of its service (vis a vis the date of service of his request for admissions) his current application for relief pursuant to CPLR 3123 is repetitive of the request previously made by claimant and denied by Judge Lopez-Summa's decision and order dated January 9, 2013. Therefore, the branch of claimant's motion which is for relief pursuant to CPLR 3123 is denied.
The cross motion was made on August 5, 2014 (the date it was served), beyond the expiration of the statutory time limitation of 120 days (in this case beyond the 125 days concluding with July 14, 2014). Therefore, the defendant's motion is also untimely and is denied in all respects.
November 6, 2014
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on the claimant's motion for summary judgment pursuant to CPLR 3212 and the defendant's cross motion for summary judgment dismissing the claim:
1. Notice of Motion, Affidavit in Support with Exhibits 1-22 (M-85419).
2. Defendant's Memorandum of Law (M-85419 & CM-85464).
3. Notice of Cross Motion, Affirmation with Exhibits A-F (CM-85464).