DiLapi v Saw Mill Riv., LLC (2013 NY Slip Op 51055(U))

DiLapi v Saw Mill Riv., LLC

2013 NY Slip Op 51055(U) [40 Misc 3d 1206(A)]

Decided on July 8, 2013

Supreme Court, Westchester County

Giacomo, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff alleges that on March 29, 2009, while installing telephone lines in a liquor stockroom or utility room next to the boiler room of a premises known as 140 Saw Mill River Road, Hastings on Hudson, NY, he sustained serious and severe personal injuries as a result of exposure to carbon monoxide. Plaintiff alleges that his exposure to carbon monoxide was due to the negligence of defendants.

On March 4, 2011, this Court granted plaintiff's motion for a default judgment against defendant Saw Mill, LLC. Saw Mill River, LLC never moved to vacate this default.

On December 21, 2012, this Court denied Saw Mill River, LLC's motion for summary judgment on the ground that there was a default judgment entered against it which had not been vacated. The Court also granted defendants San Roc Corp ("San Roc") and Westchester Manor's motions for summary judgment dismissing the complaint on the ground that there is no evidence to support plaintiff's claim that San Roc or Westchester Manor had actual notice of the carbon monoxide condition which caused plaintiff's injuries.

Saw Mill River, LLC now moves to vacate its default on the ground that during the pendency of the plaintiff's default motion, the parties stipulated to withdraw the motion and permit Saw Mill River to answer. Saw Mill River, LLC also seeks to renew its motion for summary judgment dismissing the complaint.

Plaintiff cross moves to renew its summary judgment motion on the ground that since it was it was not aware the Court would rely on the amended deposition testimony of Anthony Delillis, a principal of defendants Saw Mill River, LLC and San Roc, it wants to establish that defendants would have known of the defective condition in the basement were it not for their negligence in failing to properly maintain and monitor both the gas water heater and the carbon monoxide detected which were both located in the utility room. Plaintiff submits the affidavit of an expert in support of this new argument.

Discussion

The Court will address the motions in the order it deems most logical.

Plaintiff's Cross Motion to Renew

CPLR §2221 governs motions affecting prior orders. A "motion for leave to renew 'shall be based upon new facts not offered on the prior motion that would change the prior determination' (CPLR 2221[e][2]) and 'shall contain reasonable justification for the failure to present such facts on the prior motion' (CPLR 2221[e][3]." (Caraballo v. Kim, 63 AD3d 976, 882 N.Y.S.2d 211 [2nd Dept 2009], citing Ramirez v. Khan, 60 AD3d 748, 874 N.Y.S.2d 257 [2nd Dept 2009]; Dinten-Quiros v. Brown, 49 AD3d 588, 852 N.Y.S.2d 793 [2nd Dept 2001]; and Madison v. Tahir, 45 AD3d 744, 846 N.Y.S.2d 313 [*2][2nd Dept 2007]). "A motion to renew is not a second chance given to a party who failed to exercise due diligence when making their initial factual presentation." (Renna v. Gullo, 19 AD3d 472, 797 N.Y.S.2d 115 [2nd Dept 2005] quoting Rubinstein v. Goldman, 225 AD2d 328, 329, 638 N.Y.S.2d 469 [1st Dept 1996]; see also, Caraballo v. Kim, supra; O'Dell v. Caswell, 12 AD3d 492, 784 N.Y.S.2d 603 [2nd Dept 2004]).

Here, plaintiff seeks to renew his summary judgment motion and include an expert affidavit and add new arguments. However, plaintiff offers no reason why this evidence and the new arguments could not have been raised in its original motion. Moreover, plaintiff fails to annex a complete set of motion papers on its motion to renew which is required by this Court's Part rules which specifically mandate that

"On any motion seeking leave to renew or reargue a prior motion, the moving party shall submit copies of all papers submitted on the prior motion. The failure to comply with this requirement shall result in the denial of the motion unless the papers on the prior motion are submitted to the Court by another party." (Part Rule III[L](2]).

Accordingly, the motion is DENIED.

Saw Mill River's Motion to Vacate it Default

The Court notes that since none of the parties notified the Court of the withdrawal of plaintiff's motion seeking a default against Saw Mill River, LLC, that motion remained pending and was properly decided by the Court. Since the Court rendered a decision on a valid motion, it was incumbent upon Saw Mill River, LLC to move to vacate the default pursuant to CPLR 5015. Saw Mill River, LLC proceeded at its own peril by failing to notify the Court that said motion was withdrawn ^[FN1] and by failing to move to vacate the default judgment entered against it in a timely fashion. Notably, even after the March 4, 2011, decision and order granting a default against it, Saw Mill River, LLC did not move to vacate the default. Yet, Saw Mill River, LLC participated in discovery in this action.

Contrary to Saw Mill River, LLC's arguments, there is no provision in the CPLR directing the Court sua sponte tovacate a default upon the mere sending of a letter to the Court requesting same. Rather, it was Saw Mill River LLC's obligation to immediately inform the Court that the pending motion for a default judgment was withdrawn. It is Saw Mill River, LLC's obligation to preserve and protect its rights in this litigation, not the Court's. The Court also notes that Saw Mill River, LLC never followed up its letter to determine whether the default was vacated. In fact, it appears that Saw Mill River, LLC was unaware of its status as a defaulted party until this Court issued its December 21, 2012 decision and order; almost two years after it learned of the entry of the default. It is not clear to this Court that counsel adequately protected the interest of its client Saw Mill River, LLC. [*3]

Nevertheless, in the interest of justice and despite the fact that more than one year has elapsed since the entering of the default judgment (see CPLR 5015) against Saw Mill River, LLC the Court grants Saw Mill River, LLC's motion to vacate its default. (See Town of Greenburgh v. Schroer, 55 AD2d 602, 389 N.Y.S.2d 384 [2nd Dept 1976]). However, the Court exercises its power pursuant to CPLR 5015(a) and relieves Saw Mill River, LLC from its default "upon such terms as may be just;" therefore, in view of the utter waste of judicial resources based solely upon Saw Mill River, LLC's attorney's failure to notify the Court of the withdrawal of the default motion the Law Office of Lori Fishman is directed to donate $2,500 to The Lawyer's Fund for Client Protection of New York, 119 Washington Avenue, Albany, NY 12210, within 30 days of the date of this order.The Court also grants Saw Mill River LLC's motion for leave to renew its summary judgment motion and upon renewal finds that Saw Mill River, LLC did not have notice of the dangerous condition which caused plaintiff's injury (see Lewis v. Metropolitan Transp. Auth., 99 AD2d 246, 249, 472 N.Y.S.2d 368 [1984] affd. 64 NY2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 [1984] ). Thus, that motion is granted.

Accordingly, Saw Mill River LLC's motion to vacate its default is GRANTED provided The Law Office of Lori Fishman donates $2,500 to "The Lawyer's Fund for Client Protection of New York, 119 Washington Avenue, Albany, NY 12210" within 30 days of the date of this order. Saw Mill River, LLC's motion for leave to renew its summary judgment motion is also GRANTED and upon renewal the Court GRANTS Saw Mill River, LLC's motion for summary judgment dismissing the complaint.

Dated: White Plains, New York