Opinion
24150/2019E
02-26-2021
Channing SOLOMON, Plaintiff, v. GUN HILL ASSOCIATES TRUST, Dunkin’ Donuts Franchising, LLC and Iodice Claudio, Defendants.
Special and Appellate Counsel to Brian J. Isaac, Esq., Pollack Pollack Isaac & Decicco, LLP, 225 Broadway, 3rd Floor, New York, New York 10007, Plaintiff's Attorney Herbert S. Subin, Esq., Subin Associates, LLP, 150 Broadway, 23rd Floor, New York, New York 10038, Defendant's Attorney Joseph McSpedon, Esq., White & McSpedon, PC, Dunkin Donuts Franchising LLC, 875 Avenue of the Americas, Suite 800, New York, New York 10001, Defendant's Attorney Bruce w. McCoy Jr., Golden, Rothschild, Spagnola, Lundell, Boylan, Garubo & Bell, PC, Gun Hill Associates Trust And Claudio Iodice, 40 Wall Street, 28th Floor, New York, New York 10005
Special and Appellate Counsel to Brian J. Isaac, Esq., Pollack Pollack Isaac & Decicco, LLP, 225 Broadway, 3rd Floor, New York, New York 10007, Plaintiff's Attorney
Herbert S. Subin, Esq., Subin Associates, LLP, 150 Broadway, 23rd Floor, New York, New York 10038, Defendant's Attorney
Joseph McSpedon, Esq., White & McSpedon, PC, Dunkin Donuts Franchising LLC, 875 Avenue of the Americas, Suite 800, New York, New York 10001, Defendant's Attorney
Bruce w. McCoy Jr., Golden, Rothschild, Spagnola, Lundell, Boylan, Garubo & Bell, PC, Gun Hill Associates Trust And Claudio Iodice, 40 Wall Street, 28th Floor, New York, New York 10005
Kenneth L. Thompson Jr., J. The Decision/Order on this motion is as follows:
Plaintiff moves to vacate the decision and order of this Court dated September 16, 2020 that granted defendant Dunkin’ Doughnut Franchising, LLC's, (Dunkin) motion for summary judgment upon default. This action arose as a result of personal injuries sustained by plaintiff in a trip and fall in a vehicular driveway leading to a parking lot jointly used by several businesses. The plaintiff testified "I tripped over a little pothole that the car was covering."
Plaintiff's deposition, page 53 — 56.
Plaintiff's deposition, page 54.
"A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense ( Matter of Lemon v. Faison , 150 A.D.3d 1003, 1004, 56 N.Y.S.3d 131 [2017] ; see Matter of Brice v. Lee , 134 A.D.3d 1106, 1107, 24 N.Y.S.3d 112 [2015] )." ( Timothy R. v. Laverne S.G. , 172 A.D.3d 866, 867, 100 N.Y.S.3d 313 [2nd Dept. 2019] ).
REASONABLE EXCUSE
Plaintiff's attorney, Robert Eisen, avers that he personally suffered illness during the COVID-19 pandemic. It is uncontroverted on this motion that plaintiff has a reasonable excuse for defaulting in filing opposition to the underlying motion. Therefore, plaintiff has met the reasonable excuse branch of his application to vacate the default.
However, for the record, the granting of the underlying motion was not in contravention of the Governor's Executive Orders tolling some legal deadlines. The plaintiff argues that "despite the shutdown in the Governor's continuing Executive Orders tolling all deadlines during the height of the pandemic — including another toll issued today extending deadlines to November 3, 2020 — our office made a conscious effort to comply with due dates by exchanging motions, and other papers with opposing counsel."
Affidavit of Robert J. Eisen, paragraph 13.
Executive Order 202.8, as extended by Executive Order 202.67 to November 3, 2020, states in pertinent part, as follows:
any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding , as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.
(emphasis added).
Therefore, it would seem that the current Executive Orders toll time periods for serving process in legal actions, including those in CPLR 306-b. The Executive Orders should not be read, however, to necessarily extend the time to appear in actions. See Siegel & Connors, New York Practice § 111 ("How and When to Appear"). Nor should they be interpreted to extend the time to serve answering papers on a motion.
(Patrick M. Conners, Interpreting the COVID-19 Toll and Related Administrative Orders, September 11, 2020, page 69 [National Law Foundation] (emphasis added).
It is important to note that the Executive Order did not toll "all deadlines," and by the plain meaning of the Executive Order, the Order did not extend the time to serve opposition papers to a motion. Therefore, the granting of the underlying motion was not in contravention of the Governor's Executive Orders tolling some legal deadlines.
MERITORIOUS CLAIM
Jeffrey Karlin, (Karlin) a Director and Legal Counsel for Dunkin avers that the donut shop was not "owned, cared for, operated, managed, or controlled" by Dunkin. Karlin further avers that Dunkin’ did not control or engage "in the day-to-day activities necessary to carry on the business operations of the Dunkin’ franchise at issue in this action."
Affidavit of Jeffrey Karlin, paragraph. 7.
Affidavit of Jeffrey Karlin, if paragraph 8.
In a case cited by plaintiff, Andreula v. Steinway Baraqafood Corp. , 243 A.D.2d 596, 668 N.Y.S.2d 891 [2nd Dept. 1997], the Appellate Division held that the action against the defendant, Dunkin’ Donuts of New York, Inc., should have been dismissed as the franchisor did not "maintain the right to direct and control the manner of performing the very work in the course of which the accident occurred." Id. Similarly, in the case at bar, Dunkin did not have the right to direct and control the maintenance of the area where plaintiff tripped and fell, the driveway to the parking lot. None of the sections of the franchise agreement cited by plaintiff addresses the maintenance of the driveway leading to the parking lot or maintenance of the parking lot itself.
Plaintiff also cited to Repeti v. McDonald's Corp. , 49 A.D.3d 1089, 855 N.Y.S.2d 281 [3rd Dept. 2008], which is easily distinguished as the defendant McDonald's Corporation was the lessee in Repeti , while Dunkin’ in this action was not a lessee. Moreover, the instrumentality of injury in Repeti was a door in the premises, not a pothole in a driveway/parking lot adjacent to the demised premises. It is undisputed that the lease between the franchisee and the landlord places responsibility for maintenance of the driveway and parking lot on the landlord.
With respect to plaintiff's assertion that Dunkin's motion for summary judgment is premature:
Although a motion for summary judgment may be denied if the facts essential to establish opposition ‘may exist but cannot then be stated’ ( CPLR 3212 [f] ), ‘[m]ere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis ... for postponing a decision on a summary judgment motion’ ( Jones v. Surrey Coop. Apts., Inc. , 263 A.D.2d 33, 38, 700 N.Y.S.2d 118 [1999], quoting Kennerly v. Campbell Chain Co. , 133 A.D.2d 669, 670, 519 N.Y.S.2d 839 [1987] ).
( Fulton v. Allstate Insurance Co. , 14 A.D.3d 380, 381, 788 N.Y.S.2d 349 [1st Dept. 2005] ).
Accordingly, plaintiff's motion to vacate the dismissal is denied on grounds that the action lacks merit as against defendant, Dunkin’ Donuts Franchising, LLC.
The foregoing constitutes the decision and order of the Court.