Opinion
65954/2015
08-06-2019
Laura SMITH, Plaintiff, v. ROMA 390 RESTAURANT CORP., and 390 S. Realty Corp., Defendants.
Plaintiff brought this action to recover damages for personal injuries allegedly sustained as a result of a slip and fall from a pot hole in a parking lot. This matter was assigned to the court for an inquest after the decision and order of this court dated May 12, 2016 (Jamieson, J), granted a default judgment and inquest against defendants Roma 390 Restaurant Corp., and 390 S. Realty Corp. ("defaulting defendants"). This court closed the inquest with a direction to counsel to provide information about the amount of settlements that had been reached with two other defendants (referenced in the May 12, 2016 decision and order). The information about the purported settlements was never submitted to the court, and thus, no decision was rendered for that inquest. Apparently those settlements fell through, because on December 20, 2018 the court (Jamieson, J.), granted summary judgment to those two defendants. Justice Jamieson specifically cited the affidavit of Gail Burns, the Executive Director of the Yonkers Parking Authority (YPA), which affirmatively stated that YPA was the owner of the parking lot where plaintiff fell. Specifically, Ms. Burns states in her affidavit that YPA is responsible for the subject parking lot, and defendants have no maintenance responsibilities or obligations therefor. The court held that: "this showing of lack of control, ownership or responsibility for the premises establishes movants' prima facie case" (NYSCEF Doc No. 88).
On April 19, 2019, this matter was re-assigned to this court for a new inquest with respect to the remaining defaulting defendants by the Trial Ready Part. The court adjourned the matter, ostensibly because subpoenaed records were missing, but specifically pointed out to plaintiff's counsel that the decision of the court by Justice Jamieson is the law of the case, and that the court would expect plaintiff's counsel to re-examine whether defaulting defendants could be held to be liable for a condition on property for which another entity has established ownership, control, and maintenance responsibility.
Despite a clear showing of responsibility for the subject premises on YPA, plaintiff elected to pursue damages against the defaulting defendants. An inquest was conducted on June 17, 2019. Defaulting defendants, who have never appeared in this action, failed to appear. At the inquest, plaintiff's counsel took the position that the default resolved all liability issues, plowed forward with willful blinders on, and now seeks a judgment against the defaulting defendants, perhaps merely because they were in default, and without any proof whatsoever that these defaulting defendants have any connection to the premises controlled by YPA. Of significance, plaintiff's own account of where she fell makes it clear that she did not fall upon the "subject premises" claimed in the complaint (390 South Broadway), but rather, the municipal lot owned by the YPA. The sole, tenuous link that plaintiff testified to--which apparently led to naming the defendants in this action--is that she planned to eat at the adjacent restaurant had she not injured herself in the YPA parking lot. Defaulting defendants appear to have been affiliated with the restaurant, which plaintiff testified was approximately 50 feet from where she fell. However, she also testified that her accident occurred near a fence close to Chase Bank. Had she been going to the bank, undoubtedly, Chase would have been a defendant in this case.
It is obvious to the court that plaintiff's counsel's strategery has been guided by statute of limitations problems, because apparently no GML § 50 notice of claim was filed upon the municipality that owns the premises.
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At the completion of the inquest, the court reserved its decision. The court has now considered the admissible evidence presented at inquest, and plaintiff's oral argument and submissions. Despite adjournments, two inquests, and guidance from the court, counsel for plaintiff made no effort whatsoever to establish any connection between defaulting defendants and the municipal parking lot where the plaintiff fell. Nothing in the record links the defaulting defendants to the ownership, maintenance, or control of the parking lot in which plaintiff was injured, and in any event, the court made a finding that YPA is the owner and responsible party.
Even plaintiff's amended verified complaint is a model of blunderbuss, inartfully pleaded, consisting of 39 or 40 identical allegations against each of the four named defendants, many of which are mutually exclusive (defendant ___was and now is a foreign corporation was and now is a domestic corporation was and still is a domestic corporation was and now is a partnership was and now is a foreign limited liability company was and now is a limited liability company was and now is a sole proprietorship was and now is an unincorporated business entity was the owner was the lessor was the lessee operated the subject premises negligently operated the subject premises).
This court is aware that the Second Department has ruled that a defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability, and that the sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff ( Kim v. S & M Caterers, Inc., 136 AD3d 755, [2d Dept 2016] ; Gonzalez v. Wu, 131 AD3d 1205, 1206 [2d Dept 2015] ). The Kim court found that "although the Supreme Court acknowledged at the inquest that the defendant had defaulted, the court concluded that the plaintiffs had failed to establish, prima facie that the defendant was liable... and the Supreme Court erred in considering the questions of whether the subject accident was caused by the defendant's conduct" ( Kim v. S & M Caterers, Inc., 136 AD3d 755. Unlike those rulings, where the Second Department reversed the lower court decisions that questioned liability at the inquest, is that this court actually knows that the defaulting defendant did not cause the plaintiff's damages. No question actually exists, as the matter of liability has been affirmatively determined by the court (in the summary judgment motion) that it was the YPA was responsible for the parking lot. Had these defaulting defendants been party to this motion for summary judgment, there is no doubt that summary judgment would be granted in their favor for the same reasons.
Clearly, as is the case here, if an adjoining landowner or lessee did not own, occupy, control, or make special use of the parking lot in which the accident occurred, then it cannot be held liable ( Casale v. Brookdale Medical Associates , 43 AD3d 418, 419 [2d Dept 2008] ); Hennessy v. Palmer Video , 237 AD2d 571, 572 [2d Dept 1997] ); ( Minott v. City of New York , 230 AD2d 719 [2d Dept 1996] ).
In any event, plaintiff had a full and fair opportunity: 1) to contest the Burns affidavit in opposing the summary judgment motion; 2) to research land records for the four-year life of this case, and specifically, after the summary judgment motion was granted, and the 2 months between April 19, 2019 and June 17, 2019; and 3) to demonstrate any special use or other connection between the YPA lot and the defaulting defendants. As is the case here, where a viable cause of action against defaulting defendants is not present, the party moving for judgment is not entitled to the requested relief, even on default ( Green v. Dolphy Const. Co., 187 AD2d 635, 636, [2d Dept 1992] ).
Justice Jamieson's decision and order on the merits of the evidence precludes any finding of liability against any party other than YPA, absent some additional showing such as special use. Therefore, despite its earlier default judgment against these defendants, after the summary judgment motion was granted, the plaintiff needed to establish some theory of liability discussed herein. Counsel ignored the court's guidance and pretended that the issue did not exist. It defies logic and fairness to hold defaulting defendants accountable where a third party has been found to be liable. The notion that a defaulting defendant has conceded liability has its place, but not here.
This court is mindful that "a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ( Oak Hollow Nursing Home v. Stumbo (117 AD3d 698 [2d Dept 2014], citing HSBC Bank USA, NA v. Taher , 104 AD3d 815 [2d Dept 2013], quoting US Bank, NA v. Emmanuel , 83 AD3d 1047[2d Dept 2011] ). Unlike those cases, which were at the summary judgment stage, here plaintiff has had multiple opportunities to prove her case, and failed to do so. These extraordinary circumstances mandate that in the interest of justice, the court consider the uncontroverted evidence, even in the context of a default judgment, that YPA is responsible for the subject parking lot. Keeping in mind the principles of justice and public policy that the court is sworn to uphold, plaintiff has been given an opportunity to fully address the issue and to lay bare her proof, which has shown connection between defaulting defendants and the premises where plaintiff fell.
Lastly, the court would be remiss if it did not specifically address plaintiff's counsel's decision to advance a position to hold defaulting defendants accountable for an injury that occurred in the subject parking lot, when the court has held that another party is responsible. Under less extraordinary circumstances, the Second Department case law supports the legal principle that a default resolves liability, but attorneys have ethical responsibility to not to advance a claim that is unwarranted under existing law (see New York Rules of Professional Conduct, 22 NYCRR 1200, Rule 3.1). Just because you can do it, doesn't make it right. The underlying claim against these defaulting defendants is patently, glaringly, and offensively without merit, and cannot be prosecuted in good faith following the summary judgment decision in this case.
Based upon the foregoing, the complaint is dismissed after inquest.
The foregoing, constitutes the decision, order and judgment of this court.