[*1]
Lewis v Pimental
2007 NY Slip Op 50040(U) [14 Misc 3d 1215(A)]
Decided on January 9, 2007
Supreme Court, Kings County
Rivera, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 9, 2007
Supreme Court, Kings County


Mala A. Lewis and Charisse Singh, Plaintiffs,

against

Daniel Pimental, Defendant.




3632/04

Francois A. Rivera, J.

By notice of motion filed on February 28, 2006, under motion sequence number 4, defendant Daniel Pimental (hereinafter Pimental), moves pursuant to CPLR §3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint of Mala A. Lewis (hereinafter Lewis) and Charisse Singh (hereinafter Singh) on the basis that they did not sustain a serious injury plaintiff's complaint on the basis that they did not sustain a serious injury.

By amended notice of motion filed on June 9, 2006, under motion sequence number 5, Pimental moves pursuant to CPLR §3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint of Lewis and Singh on the basis that they did not sustain a serious injury. Plaintiffs oppose the motions.

The parties appeared in Part 52 of this court for oral argument on motion sequence number 4, on March 21, April 28, and June 2, and for both sequence number 4 and 5 on July 7, August 18, and September 8, 2006.

On July 7, 2006. plaintiffs requested an adjournment to submit opposition to the motions. By order dated July 7, 2006, this court granted the request and directed plaintiffs to submit opposition papers by August 4, 2006, and defendant to reply by August 17, 2006. The motions were marked final for submission and adjourned to August 18, 2006, for oral argument.

On August 9, 2006, plaintiffs served opposition papers on defendant's counsel by Federal Express overnight mail. On August 17, 2006, defendant's served plaintiffs' counsel with their reply. On August 17, 2006, plaintiffs mailed supplemental opposition papers to defendant's counsel.

On August 18, 2006, during scheduled oral argument on the motion, defendant objected to plaintiff's untimely service of opposition and supplemental opposition papers contrary to the order of this court dated July 7, 2006. Plaintiffs' supplemental opposition was received by the defendant after defendant had served their reply. Inasmuch as defendant did not have an opportunity to respond to plaintiffs' supplemental opposition the court adjourned oral argument to September 8, 2006 and gave defendant the opportunity to supplement their reply by September 7, 2006. [*2]

On September 8, 2006, the parties appeared for oral argument. Defendant in support of the two motions took notice that motion sequence number 4 and 5 sought the same relief on the same basis. Defendant withdraw sequence number 5 without objection, it being filed later in time, leaving only sequence number 4 remaining for court decision. After oral argument, the court reserved decision.

In preparation for drafting this decision, the court requisitioned and reviewed the Kings County Clerk's file to determine and find the following procedural history. On February 4, 2004, plaintiffs commenced this action for personal injuries by filing a summons and verified complaint. Issue was joined by defendant's verified answer dated March 30, 2004. The answer included a counterclaim against plaintiff for injuries sustained by Charisse Singh. By verified answer dated May 28, 2004, Marla A.Lewis answered defendant's counterclaim. On March 21, 2006, a note of issue was filed with the Kings County Clerk's office.

Plaintiffs' complaint and bill of particulars allege that on July 15, 2003, Lewis was driving her 1990 Mazda with Singh as a passenger. On that date sometime around 2:30 and 3:05 pm, Pimental allegedly drove his 1993 Lincoln in a negligent manner and struck Lewis' vehicle at or near the intersection of Vermont and Livonia Avenue in Kings County.

Defendant's Motion Papers

The court reviewed defendant's motion papers for motion sequence number 4 and number 5 and took notice that the affirmation of defendant's counsel and the nine annexed exhibits were identical. The only difference was the date of the signature contained on the affirmation of defendant's counsel and the date of service contained on the affirmation of service of the motion.

Defendant's motion papers consists of the affirmation of his counsel and nine exhibits. The court notes that defendant's motion papers do not include the pleadings of this case. Although the affirmation of defendant's counsel in support of the motion references the pleadings in this case as annexed exhibits B and C, the pleading were not annexed. Instead, exhibits B and C were the pleadings of a different action between different parties represented by different lawyers under a different index number apparently brought in Queens County Supreme Court.

Defendant's failure to include the pleadings in the instant motion was neither addressed nor obviated by plaintiffs in their opposition or supplemental opposition papers. Nor was it addressed or corrected in defendant's reply or supplemental reply.

Law and Application


CPLR §3212 (b) provides in pertinent as follows:
Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.


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 Hosp., 68 NY2d 320 [1986]). 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 any [*3]material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). 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 [1993]).

In order for the defendant to prevail on the motion seeking dismissal of the complaint he must establish a prima facie entitlement to judgment that Lewis and Singh did not sustain a serious injury within the meaning of Inurance Law 5102(d) as a result of the subject motor vehicle accident (Toure v. Avis Rent a Car Sys., 98 NY2d 345 [2002]).

The requirement that a motion for summary judgment be supported by the pleadings is mandatory. The failure to include the pleadings renders the motion procedurally defective and subject to denial on that basis alone (Matsuk v. Konkalipos, 824 NYS2d 918 [2nd Dept 2006]; Wider v. Heller, 24 AD3d 433 [2nd Dept 2005]).

Defendant's motion is denied without prejudice. Should defendant wish to move for summary judgment again, he must do so within thirty days of service of notice of entry of this decision and order.

Inasmuch as the court is denying defendant's motion on procedural grounds, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact.(Mondi v. Keahon, supra 32 AD3d 506 [2nd Dept. 2006]).

The foregoing constitutes the decision and order of this court.

Enter forthwith

_____________________________x

J.S.C.