[*1]
Job v Bowers
2011 NY Slip Op 51703(U) [32 Misc 3d 1244(A)]
Decided on September 19, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2011
Supreme Court, Kings County


Jayln Job, an Infant by Petyln A. Job, the mother and natural guardian, and Petlyn A. Job, individually, Plaintiff,

against

Lawrence Bowers, Defendant.




31909/07



Plaintiffs counsel

William Pager

470 Kings Highway

Brooklyn, New York 11223

718-998-1010

Defendant's counsel

Glenn Schwartz

James G. Bilello & Associates

875 Merrick Avenue

Westbury, New York 11590

516-229-4361

Francois A. Rivera, J.



By notice of motion filed on September 21, 2010, under motion sequence number four, defendant Lawrence Bowers moves pursuant to CPLR 3212 and Insurance Law 5102(d) for an order granting summary judgment dismissing the complaint on the basis that the plaintiffs did not sustain a serious injury. Defendant also seeks dismissal of the complaint pursuant to CPLR 3126 based on plaintiffs' failure to comply with defendant's discovery demands.

Plaintiffs submitted written opposition to the motion but did not appear and defaulted on September 16, 2011, the date scheduled for oral argument on the instant motion.

BACKGROUND


On August 23, 2007, plaintiffs commenced this action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Defendant interposed a verified answer with counterclaim dated January 3, 2008. [*2]

Plaintiffs' action is for damages due to personal injury sustained by Petlyn and her infant daughter Jaylyn Job as a result of a motor vehicle accident. The complaint and verified bill of particulars alleges that on August 10, 2006, at around 7:05 a.m., the defendant negligently drove his 1994 Chevrolet in the vicinity of West 15th street and Neptune Avenue, Brooklyn, New York and struck the vehicle operated by Petlyn A. Job and occupied by her daughter Jayln Job and seriously injured both of them.

MOTION PAPERS


Defendant's motion consist of an affirmation of his counsel and nine annexed exhibits labeled A through I. Exhibit A is the instant summons and verified complaint. Exhibit B is defendant's answer and counterclaim and various disclosure demands. Exhibit C is the note of issue filed in this action. Exhibit D is plaintiffs' verified bill of particulars. Exhibit E is plaintiffs' supplemental bill of particulars. Exhibit F is an order of this court dated June 12, 2009 pertaining to discovery. Exhibit G is a copy of the transcript of Petlyn A. Job's deposition conducted on October 29, 2009. Exhibit H is an order of this court dated January 13, 2009 which modified a preliminary conference order by clarifying that the defendant was not seeking to depose the infant plaintiff, Jaylyn Job. Exhibit I is the affirmed medical report of Dr. Alan J. Zimmerman, of an orthopedic examination of plaintiff Petlyn Job conducted on December 10, 2009.

As requested by defendant's counsel, plaintiffs opposition papers are disregarded due to plaintiffs' default in appearance for oral argument.

APPLICABLE LAW


Part 202 of the Uniform Rules for the New York State Trial Courts (22 NYCRR) at section 202.7 (a) and (c) provides in pertinent part as follows:

"(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion . . .

"(c) The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place, and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held."It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by proffering evidentiary proof in admissible form sufficient to demonstrate the [*3]absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 [1986]). "Issue finding, rather than issue determination, is the court's function If there is any doubt about the existence of a triable issue of fact or if a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 548, 635 N.Y.S.2d 85, 86 [2d Dept 1995] [citation omitted]). Once the proponent has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., supra).

"A summary judgment motion should not be granted merely because the party against whom judgment is sought failed to submit papers in opposition to the motion (i.e., defaulted') (Vermont Teddy Bear Co. v 1-800 Beargram Co., 373 F3d 241, 244 [2d Cir 2004] [ the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment. Instead, the . . . court must still assess whether the moving party has fulfilled its burden of demonstrating that there is no genuine issue of material fact and its entitlement to judgment as a matter of law']; see Cugini v System Lbr. Co., 111 AD2d 114, 115, 489 N.Y.S.2d 492, 493 [1985])." (Liberty Taxi Mgt., Inc. v Gincherman, 32 AD3d 276, 277 fn1, 820 N.Y.S.2d 49 [1d 2006].)

The proponent's failure to sufficiently demonstrate its right to summary judgment requires a denial of the motion regardless of the sufficiency, or lack thereof, of the opposing papers (Cugini v System Lbr. Co., supra).

CPLR 3212(a) provides, in pertinent part, that any party may move for summary judgement in any action after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown. Until 1996, the only time requirement for making a motion for summary judgment was that "issue has been joined" in the action. There was no outer limit until one was enacted in 1996. The moment of joinder of issue continues to be the earliest time for the making of a motion for summary judgment on the claim involved. If the motion is made against the plaintiff's cause of action, the service of the defendant's answer marks the joinder of issue; if its subject is a counterclaim, the service of the plaintiff's reply is the moment of joinder ( Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:12). The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" ( Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11, p 431) and has been strictly adhered to (Miller v. Nationwide Mutual Fire Ins. Co., 92 AD2d 723,724, 461 N.Y.S. 2d 128, 129 [4d 1983]).

It has been held that the motion does not lie before joinder of issue "[a]lthough the papers [*4]present no triable issue" (Milk v. Gottschalk, 29 AD2d 698, 286 N.Y.S. 2d 39 [3d 1968] ). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212(a); Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 728, 812 N.Y.S. 2d 628, 631 [2d 2006]).

A motion for summary judgment shall be supported by a copy of the pleadings CPLR 3212[b] ) "The pleadings" means "a complete set of the pleadings"(Wider v. Heller, 24 AD3d 433, 805 N.Y.S. 2d 130 [2d 2005]) or "all the pleadings"(Welton v. Drobniki, 298 AD2d 757, 749 N.Y.S. 2d 288 [3d 2002]).

DISCUSSION


Although no one appeared to orally oppose defendant's motion it is nevertheless denied for the following reasons. Defendant has sought to dismiss plaintiffs' complaint pursuant to CPLR 3126 for failure to comply with defendant's disclosure demands and for failure to comply with court ordered discovery. However, contrary to the requirements of part 202 of the Uniform Rules for the New York State Trial Courts (22 NYCRR) at section 202.7, defendant did not submit an affirmation that he conferred with his opponent in a good faith effort to resolve the disclosure dispute before making the instant motion.

On this basis, defendant's motion to dismiss plaintiffs' complaint as a sanction for non-compliance with disclosure requirements is denied.

Turning to defendant's motion for summary judgment, the court notes that the moving papers do not address the counterclaim defendant asserted against plaintiff Petlyn Job. In the face of defendant's silence on this point there can only be one of two possible scenarios. Either plaintiff did not interpose a reply to defendant's counterclaim or plaintiff did so but the defendant neglected to annex the reply to the instant motion papers.

A reply to a counterclaim is mandated by CPLR 3011 and the failure to do so would render a motion for summary judgment premature since issue has not yet been joined (Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 728, 812 N.Y.S. 2d 628, 631 [2d 2006]). The court is powerless to grant summary judgment on the complaint prior to joinder of issue (Id.).

If the plaintiff did reply to defendant's counterclaim, by not including a copy of the reply to his motion, defendant has not met his initial burden on the motion, thereby obviating any issue as to the sufficiency or lack of papers submitted in opposition thereto (Welton, v. Drobniki, 298 AD2d 757, 749 N.Y.S. 2d 288 [3d 2002]).

The requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, the motion should be denied on this basis alone (Thompson v. Foreign Car Center, Inc. et. al., 40 AD3d 965, 837 N.Y.S. 2d 673 [2d 2007] ). The denial, however, must be without prejudice to renewal (Green v. Wood, 6 AD3d 976, 775 [*5]N.Y.S. 2d 192 [3d 2004] citing Welton v. Drobniki, 298 AD2d 757, 749 N.Y.S. 2d 288 [3d 2002]).

Defendant's motion to dismiss plaintiffs' complaint pursuant to CPLR 3126 and to dismiss the complaint pursuant to CPLR 3212 are denied.

The foregoing constitutes the decision and order of this court.

ENTER________________________________x

J. S. C.

ENTER FORTHWITH________________________________x

J. S. C.