[*1]
| Warshefskie v New York City Hous. Auth. |
| 2011 NY Slip Op 51438(U) [32 Misc 3d 1227(A)] |
| Decided on August 3, 2011 |
| Supreme Court, Richmond County |
| Maltese, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Richmond County
Paul Warshefskie,
Plaintiff
against
New York City Housing Authority, Defendant
|
101966/07
Plaintiff is represented by Louis Grandelli, P.C.
Defendant is represented by the law firm of Leahey & Johnson, P.C.
Joseph J. Maltese, J.
The plaintiff's "cross-motion" to a "cross-motion" is treated as a motion. The
plaintiff's motions are granted in part, and denied in part. The defendant's cross-motion to
dismiss or strike claims present is denied in its entirety.
Facts
On December 6, 2006, the
plaintiff Paul Warshefskie was a New York City Police Officer detailed to serve a criminal
warrant at the General Charles W. Berry Houses ("Berry Houses"), 50 Dongan Hills Avenue,
Staten Island, New York 10306, a building owned and operated by the defendant, the New York
City Housing Authority. After entering the building, [*2]Warshefskie observed an individual asleep in the fourth floor
hallway. He woke the sleeper, who fled the scene. The plaintiff pursued. While in pursuit, a door
closed upon his hand amputating the distal joint of the right trigger finger, among other injuries.
The plaintiff brought suit against the defendant alleging negligence, and violations of General
Municipal Law § 205-e.
Discussion
General Municipal Law § 205-e
provides in part:
1. In addition to any other right of action ... under any other provision of law, in the
event any accident, causing injury ... directly or indirectly as a result of ... failing to comply with
the requirements of any of the statutes ... of the ... state ... or of any and all of their departments ...
the person or persons guilty of said neglect ... or culpable negligence at the time of such injury ...
shall be liable...
3. This section shall be deemed to provide a right of action regardless of whether the
injury of death is caused by the violation of a provision which codifies a common-law duty and
regardless of whether the injury ... is caused by the violation of a provision prohibiting activities
or conditions which increase the dangers inherent in the work of any officer ... of any police
department.[FN1]
Therefore, the defendant may be liable under General Municipal Law § 205-e
for the violation of a state statute that resulted in the plaintiff's injury. Here, the plaintiff, in his
Supplementary Bill of Particulars, is specifically listing Real Property Law § 231, a New
York State statute which provides in part:
The owner of real property, knowingly leasing or giving possession of the same to be
used or occupied, wholly or partly, for any unlawful trade, manufacture or business, or
knowingly permitting the same to be so used, is liable severally, and also jointly with one or
more of the tenants or occupants thereof, for any damage resulting from such unlawful use,
occupancy, trade, manufacture or business.[FN2]
Hence, the plaintiff's Supplemental Bill of Particulars merely seeks leave to specify a
specific statute that was violated which was a proximate cause of his injuries as is required in
order to pursue his original cause of action under General Municipal Law § 205-e.
The plaintiff's cross-motion to the cross-motion is treated as a
motion.Responding to the defendant's cross-motion, the plaintiff filed a "cross-motion to the
cross-motion," which the Appellate Division, First Department has termed "an improper vehicle
[*3]to submit supplemental papers,"[FN3] and the Supreme Court, Kings County labeled
an "impropriety."[FN4]
None the less, a "cross-motion to a cross-motion" has not prevented courts from favorably acting
upon the underlying motion actually intended.[FN5] A "cross-motion to a cross-motion" may be
favorably regarded when there is no unfair prejudice to an opposing party.[FN6] Logically, "the supporting papers
upon which the motion is based" should comply with the requirements of a proper motion for
which the "cross-motion to a cross-motion" is meant to stand.[FN7] This court has previously held that "[w]hile the
CPLR does not specifically anticipate a cross-motion in response to a cross-motion, it is
essentially an issue of labeling."[FN8] This is not meant to encourage such filings, and
it is logical to apply certain criteria when a court considers whether to treat a "cross-motion to a
cross-motion" as a proper motion. Here, the plaintiff's "cross-motion to the cross-motion" may be
treated as a motion for leave to amend the Summons and Complaint pursuant to CPLR 3025 (a);
for leave to amend the Notice of Claim; for leave to supplement the plaintiff's Bill of Particulars;
and as a request to the court to compel disclosure demanded in the plaintiff's Notice for
Discovery and Inspection.
The plaintiff's motions are denied in part and granted in part.
In order to sue the Housing Authority, it is necessary to serve a notice of
intention to commence an action that conforms to General Municipal Law § 50-e, a Notice
of Claim.[FN9] "The prime,
if not sole, objective of the notice requirements of such a statute is to assure the city an adequate
opportunity to investigate the circumstances surrounding the accident to explore the merits of the
claim while information is readily available."[FN10] "[T]he notice of claim shall comply with and
be served in accordance with the provisions of this section within ninety days after the claim
arises..."[FN11] "A
motion for leave to amend a notice of claim may be granted, if made within the time limited for
commencement of an action [see General Municipal Law § 50-e (5)], and provided
that the error in the original notice of claim was made in good faith and the [*4]municipality has not been prejudiced thereby."[FN12] Unfair prejudice may be seen
when the defendant municipal entity is unable to adequately investigate the circumstances of the
claim.[FN13] The notice
should draw attention to a police report aiding the claimant.[FN14] Here, the Notice of Claim and the Police
Aided Report were provided to the defendant and contained the essential information the
defendant needed to investigate the plaintiff's claims.
The motion to amend the Notice of Claim was made after the ninety-days time limit
specified by law, and is well beyond the one-year-and-ninety-day time limit for commencement
of an action. Therefore, the plaintiff's motion to amend the Notice of Claim is denied. However,
the plaintiff's other motions do not depend upon amending the Notice of Claim by adding new
facts, because the plaintiff only requests leave to assert a new theory of the case.
The motions to amend the pleadings are reasonable and not
prejudicial.
"Pleadings may be amended once without leave of the court."[FN15] In the instant action, the
pleadings have already been amended once without leave of the court. "A party may amend his
pleading, or supplement it by setting forth additional or subsequent transactions or occurrences,
at any time by leave of court."[FN16] When considering leave to amend pleadings,
the court must "consider how long the amending party was aware of the facts upon which the
motion was predicated and whether a reasonable excuse for the delay was offered."[FN17] Permission to amend a
pleading "is within the court's sound discretion, to be determined on a case-by-case basis. In
exercising its discretion, the court will consider how long the amending party was aware of the
facts upon which the motion was predicated and whether a reasonable excuse for the delay is
offered' ... The court may permit pleadings to be amended before or after judgment to conform
them to the evidence, upon such terms as may be just including the granting of costs and
continuances."[FN18] It is
within the discretion of the court to give leave to amend pleadings in order to conform to
evidence.[FN19]
[*5]
Now, the plaintiff seeks leave to amend the
Summons and Complaint and to supplement the Bill of Particulars by specifying which statute
was violated, namely Real Property Law § 231. "Indeed, it is elementary that the primary
function of a pleading is to apprise an adverse party of the pleader's claim."[FN20] Here, the plaintiff seeks to
interpose a new theory of the case, not to add new facts or claims. The plaintiff provided
evidence of violation of Real Property Law § 231 in admissible form. Therefore, the
plaintiff may supplement his Bill of Particulars, and amend his Summons and Complaint, in
order to conform the pleadings to the evidence. Accordingly, leave is granted to amend both the
Summons and Complaint and to supplement the Bill of Particulars.
The plaintiff's discovery demands are necessary, useful, reasonable and
not prejudicial.
The plaintiff moved for disclosure related to Real Property Law § 231. The
CPLR § 3101 (a) provides that "[t]here shall be full disclosure of all matter material and
necessary in the prosecution or defense of an action."[FN21] "The test [for disclosure] is one of usefulness
and reason,"[FN22] and
the courts balance factors for compelling or restricting disclosure.[FN23] "[A] court must strike a balance by weighing
these conflicting interests in light of facts of the particular case before it ... This is a judicial
function..."[FN24] The
plaintiff's motion seeks to compel the defendant to disclose reports, complaints, and records it
had received for the three years prior to December 6, 2006 relating to illegal activity at the Berry
Houses. Further, the plaintiff seeks to obtain records created by, and in the current possession of
the defendant. The plaintiff's discovery demands are specific, particularized to, and in accord
with the plaintiff's theory of the case that asserts the defendant failed to provide a safe work
environment by violating Real Property Law § 231, and the information sought is
discoverable.[FN25] To
consider limiting disclosure, a court must balance competing factors. The necessity, usefulness
and reasonableness of demands made by the demanding party are to be weighed against the
burdens of unreasonable annoyance, expense, embarrassment, disadvantage, or unfair prejudice
to the party subject to demand.[FN26] Here, the plaintiff demands the defendant's
records of criminal acts at the Berry Houses for the three years [*6]prior to and including December 6, 2006. The plaintiff's demand is
concordant with the theory that the defendant knowingly failed to provide a safe work place for
the plaintiff by violation of a law. Therefore, the defendant must disclose to the plaintiff those
Police Reports and Aided Reports; written complaints received by the defendant, its agents and
employees; and records, log books, memoranda and documentation maintained by the defendant,
its agents and employees, for the Berry Houses, that are in the possession of the defendant.
The defendant's cross-motion is denied in its entirety.
The defendant cross-moves todismiss or strike claims in the Supplemental Bill
of Particulars that are not also in the Notice of Claim pursuant to Public Housing Law § 157
and General Municipal Law § 50-e; to dismiss or strike new claims in the Supplemental Bill
of Particulars made without leave of the court pursuant to CPLR §§ 3126, 3042, and
3043; to dismiss or strike claims made in the Supplemental Bill of Particulars alleging new
Theories of the Case pursuant to CPLR §§ 3126, 3042, and 3043; to dismiss or strike
claims made in the Supplemental Bill of Particulars alleging new theories of the case because
they are frivolous; and to deny discovery related to new claims.
The defendant argues that new claims arising from a police officer encountering
heightened risk in the pursuit of duty is not a basis for recovery. The defendant cites Rector v.
City of New York: "a police officer may not recover damages for common law negligence
where some act taken in furtherance of a specific police ... function exposed the officer to a
heightened risk of sustaining injury."[FN27] However, this argument ignores the "separate
and apart" exception, that holds if a police officer is injured as a consequence of conduct
independent of the reason for which the officer is summoned, General Municipal Law §
205-e does apply.[FN28]
Here, the plaintiff was called upon to serve a warrant against one individual only to see another
individual acting suspiciously. The officer was not injured as a consequence of serving the
warrant, but was injured from of a different cause. Contrary to the defendant's arguments, the
plaintiff falls within the "separate and apart" exception, and General Municipal Law 250-e is
applicable.
For failure to comply with CPLR § 3042, "the court may make such final or
conditional order with regard to the failure or refusal as is just, including such relief as is set forth
in section thirty-one hundred twenty-six of this chapter."[FN29] The defendant seeks the dismissal or striking
of the new claims made in the Supplemental Bill of Particulars on grounds of CPLR § 3042
(b), and CPLR § 3043 (b) providing that new causes of action or new injuries may not be
claimed. Leave to supplement the plaintiff's Bill of Particulars has already been granted, and no
new cause of [*7]action or injury has been added. The defendant's
cross-motion to preclude additional discovery pertaining to a new theory of the case is denied.
The defendant moves to strike new claims in the Supplementary Bill of Particulars as being
frivolous. For a claim to be frivolous it must have been asserted in bad faith, without a
reasonable basis in law,[FN30] or be without substance.[FN31] This is not true of the
plaintiff's motions, and that part of the defendant's motion is denied.
Accordingly, it is hereby
ORDERED, that the part of the motion made by the plaintiff, Paul Warshefskie,
seeking leave to amend the Notice of Claim is denied; and it is further
ORDERED, that motions made by the plaintiff, Paul Warshefskie, seeking leave to
amend his Summons and Complaint pursuant to CPLR § 3025 (a); to supplement his Bill of
Particulars; to compel disclosure by the defendant New York City Housing Authority are
granted; and it is further
ORDERED, that the defendant New York City Housing Authority shall disclose to
the plaintiff Paul Warshefskie, the previous three years of records regarding: New York City
Police Reports Aided Reports; written complaints received by the defendant, its agents and
employees concerning illegal activities; and records, log books, memoranda and documentation
maintained by the defendant, its agents and employees regarding illegal activities at the General
Charles W. Berry Houses, 50 Dongan Hills Avenue, Staten Island, New York 10306, insofar as
these records are available to the defendant New York City Housing Authority ; and it is further
ORDERED, that the cross-motion made by the defendant New York City Housing
Authority to preclude the plaintiff Paul Warshefskie from seeking to dismiss those claims in the
Bill of Particulars but not in the Notice of Claim; to dismiss new claims made without leave of
the court; to dismiss claims based upon a new theory of the case; and to deny discovery related to
new claims and a new theory of the case is denied in its entirety; and it is further
ORDERED, that both parties shall return to DCM Part 3, 130 Stuyvesant Place,
Third Floor at 9:30 AM on Tuesday, August 30, 2011 for a conference.
ENTER,
DATED: August 3, 2011
[*8]Joseph J. Maltese
Justice of the Supreme Court
Footnotes
Footnote 1:General Municipal Law §
205-e (1) and (3).
Footnote 2:Real Property Law § 231
(2).
Footnote 3:JPMorgan Chase & Co. v. Travelers
Indemnity Co., 73 AD3d 9, 15 FN 1 [1st Dept 2010].
Footnote 4:JPMorgan Chase & Co. v.
Travelers Indemnity Co., 22 Misc 3d 1111A FN 1 [Sup Ct, Kings Cty 2009].
Footnote 5:JPMorgan Chase & Co. v.
Travelers Indemnity Co., 73 AD3d at 15.
Footnote 6:Id. at 15.
Footnote 7:Rizz Management Inc. v.
Kemper Ins. Co., 4 Misc 3d 1005A, 1 [NY City Civ Ct 2004].
Footnote 8:Marrero v. Braccolino
Pools, 2008 NY Slip Op 32176U, *3 [Sup Ct Richmond Cty 2008].
Footnote 9:Public Housing Law § 157
(2).
Footnote 10:Teresta v. City of New
York, 304 NY 440, 443 [1952].
Footnote 11:General Municipal Law
§ 50-e (1) (a).
Footnote 12:Pelaez v. City of New York, 79 AD3d
1115 [2d Dept 2010].
Footnote 13:Id. at 1116.
Footnote 14:Casselli v. City of New
York, 105 AD2d 251, 253 - 256 [2d Dept 1984].
Footnote 15:CPLR § 3025 (a).
Footnote 16:CPLR § 3025 (b).
Footnote 17:Caruso v. Anpro,
Ltd., 215 AD2d 713 [2d Dept 1995]; and Pellegrino v. New York City Tr. Auth., 177
AD2d 554, 557 [2d Dept 1991].
Footnote 18:Brooks v. Robinson, 56 AD3d
406, 407 [2d Dept 2008]; quoting Mohammed v. City of New York, 242 AD2d 321
[2d Dept 1998].
Footnote 19:Loomis v. Civetta
Corrino Constr. Co., 54 NY2d 18, 23 [1981].
Footnote 20:Cole v. Mandell Food
Stores, 93 NY2d 34, 40 [1999].
Footnote 21:CPLR § 3101 (a).
Footnote 22:Matter of Beryl vs.
Beryl, 118 AD2d 705, 706 [2d Dept 1986]; and Andon vs. 302-304 Mott St. Assocs.
94 NY2d 740, 746 [2000]; both quoting Allen vs. Crowell-Collier Pub. Co., 21
NY2d 403, 406-407 [1968].
Footnote 23:Andon vs. 302-304 Mott
St. Assocs., 94 NY2d at 746.
Footnote 24:Cynthia B. vs. New
Rochelle Hosp. Med. Ctr., 60 NY2d 452, 461 [1983].
Footnote 25:CPLR § 3101 (a).
Footnote 26:Accent Collections, Inc.
v. Cappelli Enterprises, Inc., ___ AD3d ___, 2011 NY Slip Op *1 - *2 [2d Dept 2011].
Footnote 27:Rector v. City of New York, 74 AD3d
771 [2d Dept 2010]; quoting
Norman v. City of New York, 60 AD3d 830, 831 [2d Dept 2009]; and quoting
Zanghi v. Niagra Frontier Transp. Commn., 85 NY2d 423, 437 - 438 [1995].
Footnote 28:Zanghi v. Niagra Frontier
Transp. Commn., 85 NY2d at 437 - 438.
Footnote 29:CPLR § 3042 (d).
Footnote 30:CPLR § 8303 (c) (i) and
(ii).
Footnote 31:Matter of Kachalsky v. Cacace, 14
NY3d 743, 744, dissent by J. Smith [2010].