Supreme Court, Bronx County, February 26, 2021

Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), special and appellate counsel to Subin Associates, LLP, New York City (Herbert S. Subin of counsel), for plaintiff.

White & McSpedon, P.C., New York City (Joseph H. McSpedon of counsel), for Dunkin' Donuts Franchising LLC, defendant.

Golden, Rothschild, Spagnola, Lundell, Boylan, Garubo & Bell, P.C., New York City (Bruce W. McCoy Jr. of counsel), for Gun Hill Associates Trust and another, defendants.

The decision/order on this motion is as follows:

Plaintiff moves to vacate the decision and order of this court dated September 16, 2020, that granted defendant Dunkin' Donuts Franchising LLC's (Dunkin) motion for summary judgment upon default. This action arose as a result of personal injuries sustained by plaintiff in a trip and fall in a vehicular driveway^[FN1] leading to a parking lot jointly used by several businesses. The plaintiff testified "I tripped over a little pothole that the car was covering."^[FN2]

" 'A party seeking to vacate a default must establish a reasonable excuse for the default, as well as a potentially meritorious claim or defense' (Matter of Lemon v Faison, 150 AD3d 1003, 1004 [2017]; see Matter of Brice v Lee, 134 AD3d 1106, 1107 [2015])." (Matter of Timothy R. v Laverne S.G., 172 AD3d 866, 867 [2d Dept 2019].)

Plaintiff's attorney, Robert Eisen, avers that he personally suffered illness during the COVID-19 pandemic. It is uncontroverted on this motion that plaintiff has a reasonable excuse for defaulting in filing opposition to the underlying motion. Therefore, plaintiff has met the reasonable excuse branch of his application to vacate the default.

However, for the record, the granting of the underlying motion was not in contravention of the Governor's executive orders tolling some legal deadlines. The plaintiff argues that "despite the shutdown in the Governor's continuing executive orders tolling all deadlines during the height of the pandemic—including another toll issued today extending deadlines to {**71 Misc 3d at 628}November 3, 2020—our office made a conscious effort to comply with due dates by exchanging motions, and other papers with opposing counsel."^[FN3]

Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), as extended by Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67) to November 3, 2020, states, in pertinent part, as follows:

"any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (emphasis added).

Therefore, it would seem that the current executive orders toll time periods for serving process in legal actions, including those in CPLR 306-b. The executive orders should not be read, however, to necessarily extend the time to appear in actions. (See Siegel & Connors, NY Prac § 110 [6th ed Dec. 2020 Update] ["How and When to Appear"].) Nor should they be interpreted to extend the time to serve answering papers on a motion. (Patrick M. Connors, Interpreting the COVID-19 Toll and Related Administrative Orders, National Law Foundation, Sept. 11, 2020 at 69.)

It is important to note that the executive order did not toll "all deadlines," and by the plain meaning of the executive order, the order did not extend the time to serve opposition papers to a motion. Therefore, the granting of the underlying motion was not in contravention of the Governor's executive orders tolling some legal deadlines.

Jeffrey Karlin, a director and legal counsel for Dunkin, avers that the donut shop was not "owned, cared for, operated, managed, or controlled"^[FN4] by Dunkin. Karlin further avers that Dunkin did not control or engage "in the day-to-day activities necessary {**71 Misc 3d at 629}to carry on the business operations of the Dunkin' franchise at issue in this action."^[FN5]

In a case cited by plaintiff, Andreula v Steinway Baraqafood Corp. (243 AD2d 596 [2d Dept 1997]), the Appellate Division held that the action against the defendant, Dunkin Donuts of New York, Inc., should have been dismissed as the franchisor did not "maintain the right to direct and control the manner of performing the very work in the course of which the accident occurred." (Id. at 596.) Similarly, in the case at bar, Dunkin did not have the right to direct and control the maintenance of the area where plaintiff tripped and fell, the driveway to the parking lot. None of the sections of the franchise agreement cited by plaintiff addresses the maintenance of the driveway leading to the parking lot or maintenance of the parking lot itself.

Plaintiff also cited to Repeti v McDonald's Corp. (49 AD3d 1089 [3d Dept 2008]), which is easily distinguished as the defendant McDonald's Corporation was the lessee in Repeti, while Dunkin in this action was not a lessee. Moreover, the instrumentality of injury in Repeti was a door in the premises, not a pothole in a driveway/parking lot adjacent to the demised premises. It is undisputed that the lease between the franchisee and the landlord places responsibility for maintenance of the driveway and parking lot on the landlord.

With respect to plaintiff's assertion that Dunkin's motion for summary judgment is premature:

"Although a motion for summary judgment may be denied if the facts essential to establish opposition 'may exist but cannot then be stated' (CPLR 3212 [f]), ' "[m]ere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis . . . for postponing a decision on a summary judgment motion" ' (Jones v Surrey Coop. Apts., Inc., 263 AD2d 33, 38 [1999], quoting Kennerly v Campbell Chain Co., 133 AD2d 669, 670 [1987])." (Fulton v Allstate Ins. Co., 14 AD3d 380, 381 [1st Dept 2005].)

Accordingly, plaintiff's motion to vacate the dismissal is denied on grounds that the action lacks merit as against defendant, Dunkin' Donuts Franchising LLC.