Opinion
22739/2018E
09-18-2020
Joyce WILSON, Plaintiff, v. 1229-1273 REALTY CORP. and Manny Stein, Defendants.
Sequence No. 1/Doc. Nos.
Notice of Motion — Exhibits and Affidavits Annexed 28-38
Cross Motion — Exhibits and Affidavits Annexed 52-55
Answering Affidavit and Exhibits, Memorandum of Law 2-51, 57 (opp. to cross-motion)
Reply Affidavit 56, 58
Upon the foregoing papers, the motion and cross-motion listed on the accompanying document are decided as follows.
The plaintiff, a tenant residing in a multiple dwelling owned and managed by the defendants, seeks damages for injuries allegedly sustained in a ceiling collapse. All depositions were completed, and plaintiff filed her note of issue on December 30, 2019. Plaintiff concedes that the relevant time to move for summary judgment was 60 days after the note of issue was filed, and admits that said deadline was not complied with, as plaintiff's office did not have this case diaried as requiring a summary judgment motion to be made within 60 days.
Plaintiff's accident allegedly occurred at Apt. 1B, 1259 Clay Avenue, in Bronx County, on August 2, 2016, at approximately 6:30 a.m. Plaintiff has testified that the accident occurred in the bathroom as she was about to brush her teeth. At that time, the bathroom ceiling collapsed onto her neck, back and shoulder, knocking her to the ground. Plaintiff claims that she had written letters to the building management about the condition of the bathroom ceiling, including recurring water leaks and the presence of mold. Plaintiff testified that during her tenancy, plaintiff had made more than 20 calls to 311 about problems in the apartment; that City inspectors had been to the apartment more than 40 times over the years; and that repairs were often made, but water leaks continued in the bathroom. Plaintiff also submits evidence that City violations were placed on the premises for a water leak in the bathroom.
Defendant Stein, the managing agent, admitted that he was aware that plaintiff had complained that water was leaking into her bathroom from the tenant above in a letter dated April 11, 2011.
Plaintiff argues that summary judgment should be awarded in her favor, as the evidence is undisputed that defendants had actual written notice of the leak in the ceiling for approximately eight months prior to the accident. The evidence is undisputed that defendants had actual notice of the ongoing leaks and moldy condition for many years prior by virtue of letters sent by the plaintiff and, perhaps more significantly, by multiple City of New York violations and inspections, yet failed to remedy it. Plaintiff also argues that negligence may be established here on the theory of res ipsa loquitur . ( Astorga v. Bronx 360 Realty Mgt. LLC, 2014 NY Slip Op 31956(U), 2014 NY LEXIS 3345, 2014 WL 3739195 [Sup. Ct. Bronx Co. 2014].)
Defendants argue that plaintiff filed her Note of Issue on December 30, 2019, and the 60-day period to move for summary judgment expired on February 28, 2020. Plaintiff filed her motion for summary judgment on May 29, 2020, three months after the Court required deadline. Defendants also argue that, on the merits, there is no proof of delivery of many of the letters assertedly sent by the plaintiff, and that prior violations were made in 2012 and were "cleared" before the alleged accident. Further, defendants maintain that HPD records clearly show that plaintiff's complaints were addressed and a repair was made to her ceiling between October 21, 2015 and November 9, 2015, more than 9 months prior to plaintiff's claimed incident.
Defendant contends that Judge Barbato became the assigned Judge on or about March 22, 2019, more than nine months before the Note of Issue was filed by plaintiff.
On the cross-motion, defendant Stein moves for summary judgment dismissing the complaint against him on the ground that he is an employee of 1229-1271 Realty LLC, and cannot be held personally liable for the subject alleged incident.
CPLR 3212 (a) sets forth the statutory timeliness requirements for the filing of a summary judgment motion. That statute permits the court to "set a date after which no such motion may be made" ( CPLR 3212 [a] ).
The motion and the cross-motion are untimely. There is no dispute here that Justice Barbato's rules applied, and there is no dispute that he was assigned well before the note of issue was filed. Plaintiff's motion was untimely and she failed to establish good cause for the delay ( CPLR 3212 [a] ; Brill v. City of New York , 2 NY3d 648, 652, 814 NE2d 431, 781 NYS2d 261 [2004] ). The plaintiff's unelaborated explanation that they neglected to diary the motion, without providing any supporting facts, does not establish good cause.
Plaintiff forthrightly and candidly admits that the COVID outbreak, and the ensuing stay mandated by Executive Order, arose after the deadline expired, but explains that the motion would have been brought sooner had it not been for the pandemic. However, even if the motion had been made sooner, the fact remains that the motion was untimely and good cause was not shown. (See Giudice v. Green 292 Madison, LLC , 50 AD3d 506, 506, 858 NYS2d 111 [1st Dept. 2008] [good cause not found where the parties failed to file their summary judgment motions by the court-imposed deadline, even if they were filed within the statutory 120-day period] ).
The cross-motion is also untimely, and no excuse has been advanced for its untimeliness.
Accordingly, it is hereby,
ORDERED that the motion and cross-motion are denied as untimely.
This is the Decision and Order of the Court.