Preview
FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------------X
GREGORY WELCH AND PRISCILLA WELCH,
Index No.: 162502/2015
Plaintiffs,
AFFIRMATION IN
-against-
SUPPORT OF MOTION
TO DISMISS/COMPEL
260-261 MADISON AVENUE LLC., SKYLIFT
CONTRACTOR CORP., BAY CRANE SERVICE,
INC., MARINE & INDUSTRIAL SUPPLY COMPANY,
INC., d/b/a MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL TESTING
SOLUTIONS; HANES SUPPLY INC., as successor-by-
merger to and/or d/b/a PAUL’S WIRE ROLE & SLING; and
PAUL’S WIRE ROLE & SLING,
Defendants.
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SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS;
MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES
SUPPLY INC., as successor-by-merger to and/or d/b/a
PAUL’S WIRE ROLE & SLING; and PAUL’S WIRE ROLE
& SLING,
Third-Party Defendants.
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260-261 MADISON AVENUE LLC,
Second Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY, INC.,
d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS;
MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES
SUPPLY INC., as successor-by-merger to and/or d/b/a
PAUL’S WIRE ROLE & SLING; and PAUL’S WIRE ROLE
& SLING,
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Second Third-Party Defendants.
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SKYLIFT CONTRACTOR CORP.,
Third Third-Party Plaintiff,
-against-
JOHNSON CONTROLS, INC.,
Third Third-Party Defendant.
-----------------------------------------------------------------------------X
260-261 MADISON AVENUE LLC,
Fourth Third-Party Plaintiff,
-against-
PENGUIN AIR CONDITIONING CORP., TIMBIL
MECHANICAL, LLC and JOHNSON CONTROLS, INC.,
Fourth Third-Party Defendants.
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Matthew R. Hughes, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1. I am associated with Saretsky Katz & Dranoff, L.L.P., attorneys for plaintiffs on
the counterclaim, Gregory Welch and Priscilla Welch (hereinafter, the “plaintiffs” or “plaintiffs
on the counterclaim” as appropriate), and as such, I am fully familiar with the facts and
circumstances of this case.
2. I submit this affirmation in support of an order:
a. Pursuant to CPLR § 3042(c), precluding the defendant/counterclaimant,
Skylift Contracting Corp. upon the trial herein, from offering any
evidence in support of the particulars demanded by the moving plaintiffs
on the counterclaim as they appear in the Demand for a Bill of
Particulars unless Skylift serves a complete response to the moving
plaintiffs on the counterclaim’s May 2, 2016 Demand for a Bill of
Particulars within thirty (30) days of the determination of this motion;
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b. Pursuant to CPLR §§ 3124 and 3126(2), compelling
defendant/counterclaimant to furnish the moving plaintiffs on the
counterclaim with a Verified Bill of Particulars and precluding Skylift
from offering any evidence in support of the particulars demanded by
the moving plaintiffs on the counterclaim unless Skylift serves a
complete response to the moving plaintiffs on the counterclaim’s May
2, 2016 Demand for a Bill of Particulars within thirty (30) days of the
determination of this motion;
c. Pursuant to CPLR § 3126(3), striking Skylift’s Answer and dismissing
Skylift’s counterclaim against the plaintiffs for failure to respond the
moving plaintiffs on the counterclaim’s May 2, 2016 Demand for a Bill
of Particular, and
d. Granting such other and further relief as this Court deems just and
proper.
FACTS AND PROCEDURAL BACKGROUND
3. This action arises from the May 31, 2015 autodefenestration of a 23-ton industrial
HVAC unit from the 29th floor of a building located at 261 Madison Avenue in midtown
Manhattan. The HVAC unit, for reasons yet to be determined, fell to the pavement below and
struck a vehicle owned and operated by plaintiffs Gregory Welch and Priscilla Welch.
4. Plaintiffs commenced this action with service of a Summons and Complaint on
December 4, 2015, a copy of which is annexed hereto as Exhibit “A.” Defendant Skylift
Contracting Corp. (hereinafter, “Skylift”) answered on March 24, 2016, asserting counterclaims
against the plaintiffs. A copy of Skylift’s Answer with Counterclaims is annexed hereto as Exhibit
“B.”
5. On May 5, 2016, these offices answered on behalf of the plaintiffs on Skylift’s
Counterclaim. A copy of plaintiffs on the counterclaim’s Answer is annexed hereto as Exhibit
“C.” Also on May 5, 2016, these offices served a Demand for a Bill of Particulars on Skylift with
respect to the counterclaims asserted in their March 24, 2016 Answer. A copy of the moving
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plaintiffs on the counterclaim’s May 5, 2016 Demand for Bill of Particulars is annexed hereto as
Exhibit “D.” To date, Skylift has failed and refused to serve a Verified Bill of Particulars in
response to this nearly seven year old Demand.
6. Following consolidation of these actions, the parties appeared for a Preliminary
Conference on September 20, 2016. The Court’s September 20, 2016 Preliminary Conference
Order, a copy of which is annexed hereto as Exhibit “E,” required Skylift to respond to
outstanding discovery demands and to provide a Verified Bill of Particulars within 45 days. To
date, Skylift has failed and refused to comply with this Court’s Preliminary Conference Order and
has not provided plaintiffs on the counterclaim with a Verified Bill of Particulars.
7. On January 22, 2018, these cases were combined under mass tort index number
783000/2018. Since that time, the parties have been bound by countless compliance conference
orders requiring compliance with outstanding demands for discovery.
8. On September 19, 2022, the parties submitted a joint discovery stipulation, a copy
of which is annexed hereto as Exhibit “F,” setting forth in relevant part that
On September 16, 2022 plaintiffs Gregory and Priscilla Welch asked
Skylift to respond to their demand for a bill of particulars, dated May
2, 2016, with respect to Skylift’s counterclaims, to the extent that
Skylift has not already done so. Skylift will do so.
Exhibit “F” at ¶ 9.
9. On September 21, 2022, the parties appeared for a compliance conference before
the Hon. Judge Lynn Kotler to discuss the status of outstanding discovery. This court’s Order
followed on September 22, 2022, a copy of which is annexed hereto as Exhibit “G,” stating quite
clearly that “Skylift shall respond to plaintiffs Welsh [sic] demand for a bill of particulars on or
before October 21, 2022.” Exhibit “G” at ¶ 10.
10. Skylift once again failed to comply with the terms of the September 19, 2022 joint
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discovery stipulation and this Court’s September 22, 2022 Order, and did not provide the moving
plaintiffs on the counterclaim with a Verified Bill of Particulars by October 21. Their response
remains outstanding.
ARGUMENT
11. CPLR § 3042 provides that “[w]ithin thirty days of service of a demand for a bill
of particulars, the party on whom the demand is made shall serve a bill of particulars complying
with each item of the demand, except any item to which the party objects, in which event the
reasons for the objection shall be stated with reasonable particularity.” CPLR § 3042(a).
12. Pursuant to CPLR § 3042(c), “if a party fails to respond to a demand in a timely
fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move
to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to
subdivision (d) of this rule.” And under CPLR § 3042(d), “if a party served with a demand for a
bill of particulars willfully fails to provide particulars which the court finds ought to have been
provided pursuant to this rule, 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 [CPLR § 3126].”
13. Pursuant to CPLR § 3126, the court has wide latitude to impose sanctions for a
party’s refusal or willful failure to comply with an order or to disclose discovery, including but not
limited to dismissal of a complaint, the striking of pleadings, preclusion of a party from making
use of unexchanged items at trial, or preclusion of a party from opposing evidence as to demands
for which responses have not been provided, without a prior Court Order directing compliance
with those outstanding demands. Coffey v. Orbach's, 22 A.D.2d 317, 254 N.Y.S.2d 596, (1st Dept.
1964); Goldner v. Lendor Structures, Inc. 29 A.D.2d 978, 289 N.Y.S.2d 687, (2d Dept. 1968).
14. It is plain that Skylift has willfully failed to respond to the May 2, 2016 Demand
for a Verified Bill of Particulars as to its counterclaim against the plaintiffs. The willful nature of
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Skylift’s failure to provide the same is amply demonstrated by the sheer fact that Skylift’s response
to the initial Demand has been outstanding for almost seven full years. Similarly, Skylift has
refused to comply with repeated orders to provide the Bill of Particulars on its counterclaim,
beginning with the court’s September 20, 2016 and continuing through the most recent Order of
September 22, 2022. Accordingly, this court should exercise its discretion to strike Skylift’s
counterclaim against the plaintiffs.
15. Plainly, Skylift has failed to respond in any way, shape or form to the May 5, 2016
Demand made by plaintiffs on the counterclaim for a Verified Bill of Particulars. Skylift has also
failed to comply with the September 20, 2016 Preliminary Conference Order requiring the same,
Exhibit “E,” Skylift’s own September 19, 2022 stipulation to provide a Bill of Particulars as to
its counterclaim, Exhibit “F,” and this court’s September 22, 2022 Order requiring them to
respond by October 21, 2022. Exhibit “G.” This is in addition to numerous court orders that have
issued subsequent to this litigation’s consolidation under index number 783000/2018.
16. As detailed in the annexed Affirmation of Good Faith, counsel for the moving
plaintiffs on the counterclaim made a written request by email on September 16, 2022 demanding
a Verified Bill of Particulars and providing a copy of the initial May 2, 2016 Demand. A copy of
this email is annexed hereto as Exhibit “H.”
17. As of the date of this motion’s filing, Skylift has not responded to plaintiffs’ May
2, 2016 Demand for a Verified Bill of Particulars, has refused to provide the same despite having
stipulated to do so before October 21, 2022, see Exhibit “F” at ¶ 9, and has defied repeated court
Orders requiring them to do so, most recently this court’s September 22, 2022 Order. See Exhibit
“G” at ¶ 10.
18. Skylift’s refusal to provide a Bill of Particulars specifying the nature of their
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allegations against the plaintiffs on the counterclaim has deprived moving plaintiffs on the
counterclaim of the opportunity to develop or pursue any coherent defense strategy or to even
evaluate Skylift’s claims against them, whatever those may be; to chart their own course of
discovery or to meaningfully participate in the discovery had thus far; or to conceptualize any basis
for a dispositive motion, and in general has severely hampered their ability to defend against
Skylift’s thus far unexplained counterclaim.
19. In light of Skylift’s total failure to respond to the moving plaintiffs on the
counterclaim’s Demand for a Verified Bill of Particulars, the issuance of an Order striking Skylift’s
Answer and dismissing Skylift’s counterclaim against the plaintiffs, or, alternatively, precluding
Skylift from asserting any claims concerning the particulars demanded or, alternatively,
compelling Skylift to provide responses to the moving plaintiffs on the counterclaim’s Demand
for a Bill of Particulars is appropriate.
20. No prior application for the relief requested herein has been made.
WHEREFORE, it is respectfully requested that the moving plaintiffs on the
counterclaim’s motion be granted in its entirety and that this Court grant such other and further
relief as it deems just and proper.
Dated: Elmsford, New York
December 9, 2022
Yours, etc.,
SARETSKY KATZ AND DRANOFF, L.L.P.
By: ___________________________________
Matthew R. Hughes. Esq.
Attorneys for Plaintiffs on the Counterclaim,
GREGORY WELCH AND PRISCILLA WELCH
Office & P.O. Address:
565 Taxter Road, Suite 210
Elmsford, New York 10523
Tel.: (212) 973-9797
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E-Mail: mhughes@skdllp.com
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ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
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TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
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Defendant shall provide notice of the Courts ruling and file a proof of service of such.
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SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
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Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X GREGORY WELCH AND PRISCILLA WELCH, Index No.: 162502/2015 Plaintiffs, AFFIRMATION IN -against- SUPPORT OF MOTION TO DISMISS/COMPEL 260-261 MADISON AVENUE LLC., SKYLIFT CONTRACTOR CORP., BAY CRANE SERVICE, INC., MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY INC., as successor-by- merger to and/or d/b/a PAUL’S WIRE ROLE & SLING; and PAUL’S WIRE ROLE & SLING, Defendants. -----------------------------------------------------------------------------X SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY INC., as successor-by-merger to and/or d/b/a PAUL’S WIRE ROLE & SLING; and PAUL’S WIRE ROLE & SLING, Third-Party Defendants. -----------------------------------------------------------------------------X 260-261 MADISON AVENUE LLC, Second Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY INC., as successor-by-merger to and/or d/b/a PAUL’S WIRE ROLE & SLING; and PAUL’S WIRE ROLE & SLING, 1 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 Second Third-Party Defendants. -----------------------------------------------------------------------------X SKYLIFT CONTRACTOR CORP., Third Third-Party Plaintiff, -against- JOHNSON CONTROLS, INC., Third Third-Party Defendant. -----------------------------------------------------------------------------X 260-261 MADISON AVENUE LLC, Fourth Third-Party Plaintiff, -against- PENGUIN AIR CONDITIONING CORP., TIMBIL MECHANICAL, LLC and JOHNSON CONTROLS, INC., Fourth Third-Party Defendants. -----------------------------------------------------------------------------X Matthew R. Hughes, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am associated with Saretsky Katz & Dranoff, L.L.P., attorneys for plaintiffs on the counterclaim, Gregory Welch and Priscilla Welch (hereinafter, the “plaintiffs” or “plaintiffs on the counterclaim” as appropriate), and as such, I am fully familiar with the facts and circumstances of this case. 2. I submit this affirmation in support of an order: a. Pursuant to CPLR § 3042(c), precluding the defendant/counterclaimant, Skylift Contracting Corp. upon the trial herein, from offering any evidence in support of the particulars demanded by the moving plaintiffs on the counterclaim as they appear in the Demand for a Bill of Particulars unless Skylift serves a complete response to the moving plaintiffs on the counterclaim’s May 2, 2016 Demand for a Bill of Particulars within thirty (30) days of the determination of this motion; 2 2 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 b. Pursuant to CPLR §§ 3124 and 3126(2), compelling defendant/counterclaimant to furnish the moving plaintiffs on the counterclaim with a Verified Bill of Particulars and precluding Skylift from offering any evidence in support of the particulars demanded by the moving plaintiffs on the counterclaim unless Skylift serves a complete response to the moving plaintiffs on the counterclaim’s May 2, 2016 Demand for a Bill of Particulars within thirty (30) days of the determination of this motion; c. Pursuant to CPLR § 3126(3), striking Skylift’s Answer and dismissing Skylift’s counterclaim against the plaintiffs for failure to respond the moving plaintiffs on the counterclaim’s May 2, 2016 Demand for a Bill of Particular, and d. Granting such other and further relief as this Court deems just and proper. FACTS AND PROCEDURAL BACKGROUND 3. This action arises from the May 31, 2015 autodefenestration of a 23-ton industrial HVAC unit from the 29th floor of a building located at 261 Madison Avenue in midtown Manhattan. The HVAC unit, for reasons yet to be determined, fell to the pavement below and struck a vehicle owned and operated by plaintiffs Gregory Welch and Priscilla Welch. 4. Plaintiffs commenced this action with service of a Summons and Complaint on December 4, 2015, a copy of which is annexed hereto as Exhibit “A.” Defendant Skylift Contracting Corp. (hereinafter, “Skylift”) answered on March 24, 2016, asserting counterclaims against the plaintiffs. A copy of Skylift’s Answer with Counterclaims is annexed hereto as Exhibit “B.” 5. On May 5, 2016, these offices answered on behalf of the plaintiffs on Skylift’s Counterclaim. A copy of plaintiffs on the counterclaim’s Answer is annexed hereto as Exhibit “C.” Also on May 5, 2016, these offices served a Demand for a Bill of Particulars on Skylift with respect to the counterclaims asserted in their March 24, 2016 Answer. A copy of the moving 3 3 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 plaintiffs on the counterclaim’s May 5, 2016 Demand for Bill of Particulars is annexed hereto as Exhibit “D.” To date, Skylift has failed and refused to serve a Verified Bill of Particulars in response to this nearly seven year old Demand. 6. Following consolidation of these actions, the parties appeared for a Preliminary Conference on September 20, 2016. The Court’s September 20, 2016 Preliminary Conference Order, a copy of which is annexed hereto as Exhibit “E,” required Skylift to respond to outstanding discovery demands and to provide a Verified Bill of Particulars within 45 days. To date, Skylift has failed and refused to comply with this Court’s Preliminary Conference Order and has not provided plaintiffs on the counterclaim with a Verified Bill of Particulars. 7. On January 22, 2018, these cases were combined under mass tort index number 783000/2018. Since that time, the parties have been bound by countless compliance conference orders requiring compliance with outstanding demands for discovery. 8. On September 19, 2022, the parties submitted a joint discovery stipulation, a copy of which is annexed hereto as Exhibit “F,” setting forth in relevant part that On September 16, 2022 plaintiffs Gregory and Priscilla Welch asked Skylift to respond to their demand for a bill of particulars, dated May 2, 2016, with respect to Skylift’s counterclaims, to the extent that Skylift has not already done so. Skylift will do so. Exhibit “F” at ¶ 9. 9. On September 21, 2022, the parties appeared for a compliance conference before the Hon. Judge Lynn Kotler to discuss the status of outstanding discovery. This court’s Order followed on September 22, 2022, a copy of which is annexed hereto as Exhibit “G,” stating quite clearly that “Skylift shall respond to plaintiffs Welsh [sic] demand for a bill of particulars on or before October 21, 2022.” Exhibit “G” at ¶ 10. 10. Skylift once again failed to comply with the terms of the September 19, 2022 joint 4 4 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 discovery stipulation and this Court’s September 22, 2022 Order, and did not provide the moving plaintiffs on the counterclaim with a Verified Bill of Particulars by October 21. Their response remains outstanding. ARGUMENT 11. CPLR § 3042 provides that “[w]ithin thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity.” CPLR § 3042(a). 12. Pursuant to CPLR § 3042(c), “if a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule.” And under CPLR § 3042(d), “if a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule, 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 [CPLR § 3126].” 13. Pursuant to CPLR § 3126, the court has wide latitude to impose sanctions for a party’s refusal or willful failure to comply with an order or to disclose discovery, including but not limited to dismissal of a complaint, the striking of pleadings, preclusion of a party from making use of unexchanged items at trial, or preclusion of a party from opposing evidence as to demands for which responses have not been provided, without a prior Court Order directing compliance with those outstanding demands. Coffey v. Orbach's, 22 A.D.2d 317, 254 N.Y.S.2d 596, (1st Dept. 1964); Goldner v. Lendor Structures, Inc. 29 A.D.2d 978, 289 N.Y.S.2d 687, (2d Dept. 1968). 14. It is plain that Skylift has willfully failed to respond to the May 2, 2016 Demand for a Verified Bill of Particulars as to its counterclaim against the plaintiffs. The willful nature of 5 5 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 Skylift’s failure to provide the same is amply demonstrated by the sheer fact that Skylift’s response to the initial Demand has been outstanding for almost seven full years. Similarly, Skylift has refused to comply with repeated orders to provide the Bill of Particulars on its counterclaim, beginning with the court’s September 20, 2016 and continuing through the most recent Order of September 22, 2022. Accordingly, this court should exercise its discretion to strike Skylift’s counterclaim against the plaintiffs. 15. Plainly, Skylift has failed to respond in any way, shape or form to the May 5, 2016 Demand made by plaintiffs on the counterclaim for a Verified Bill of Particulars. Skylift has also failed to comply with the September 20, 2016 Preliminary Conference Order requiring the same, Exhibit “E,” Skylift’s own September 19, 2022 stipulation to provide a Bill of Particulars as to its counterclaim, Exhibit “F,” and this court’s September 22, 2022 Order requiring them to respond by October 21, 2022. Exhibit “G.” This is in addition to numerous court orders that have issued subsequent to this litigation’s consolidation under index number 783000/2018. 16. As detailed in the annexed Affirmation of Good Faith, counsel for the moving plaintiffs on the counterclaim made a written request by email on September 16, 2022 demanding a Verified Bill of Particulars and providing a copy of the initial May 2, 2016 Demand. A copy of this email is annexed hereto as Exhibit “H.” 17. As of the date of this motion’s filing, Skylift has not responded to plaintiffs’ May 2, 2016 Demand for a Verified Bill of Particulars, has refused to provide the same despite having stipulated to do so before October 21, 2022, see Exhibit “F” at ¶ 9, and has defied repeated court Orders requiring them to do so, most recently this court’s September 22, 2022 Order. See Exhibit “G” at ¶ 10. 18. Skylift’s refusal to provide a Bill of Particulars specifying the nature of their 6 6 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 allegations against the plaintiffs on the counterclaim has deprived moving plaintiffs on the counterclaim of the opportunity to develop or pursue any coherent defense strategy or to even evaluate Skylift’s claims against them, whatever those may be; to chart their own course of discovery or to meaningfully participate in the discovery had thus far; or to conceptualize any basis for a dispositive motion, and in general has severely hampered their ability to defend against Skylift’s thus far unexplained counterclaim. 19. In light of Skylift’s total failure to respond to the moving plaintiffs on the counterclaim’s Demand for a Verified Bill of Particulars, the issuance of an Order striking Skylift’s Answer and dismissing Skylift’s counterclaim against the plaintiffs, or, alternatively, precluding Skylift from asserting any claims concerning the particulars demanded or, alternatively, compelling Skylift to provide responses to the moving plaintiffs on the counterclaim’s Demand for a Bill of Particulars is appropriate. 20. No prior application for the relief requested herein has been made. WHEREFORE, it is respectfully requested that the moving plaintiffs on the counterclaim’s motion be granted in its entirety and that this Court grant such other and further relief as it deems just and proper. Dated: Elmsford, New York December 9, 2022 Yours, etc., SARETSKY KATZ AND DRANOFF, L.L.P. By: ___________________________________ Matthew R. Hughes. Esq. Attorneys for Plaintiffs on the Counterclaim, GREGORY WELCH AND PRISCILLA WELCH Office & P.O. Address: 565 Taxter Road, Suite 210 Elmsford, New York 10523 Tel.: (212) 973-9797 7 7 of 8 FILED: NEW YORK COUNTY CLERK 12/09/2022 06:47 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 334 RECEIVED NYSCEF: 12/09/2022 E-Mail: mhughes@skdllp.com 8 8 of 8