Motion-Secondary: Joynul Abedin v. The City Of New York

On February 03, 2020 a Motion-Secondary was filed involving a dispute between Joynul Abedin, and The City Of New York, for Torts - Other Negligence (city negligent maintenanc) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/10/2023 04:58 PM INDEX NO. 502577/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/10/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------- X
JOYNUL ABEDIN, AFFIRMATION IN
OPPOSITION
Plaintiff,
Action #1
- against - Index No.: 502577/2020
THE CITY OF NEW YORK,

Defendant.
----------------------------------------------------------------------- X
JOYNUL ABEDIN,

Plaintiff,
- against -

THE CITY OF NEW YORK,
Action #2
Index No.: 504077/2021
Defendant.
City File No.: 2021-005775
------------------------------------------------------------------------------ X

MICHAEL THORN, an attorney admitted to practice in New York and an

Assistant Corporation Counsel of the City of New York, affirms the truth of the following under

the penalties of perjury pursuant to CPLR 2106, upon information and belief based upon the

records maintained in this office:

1. This affirmation is submitted on behalf of defendants THE CITY OF NEW

YORK (hereinafter “City”) in opposition to the motion of plaintiff JOYNUL ABEDIN dated

October 12, 2022, seeking an order: (1) restoring this action to the active status on the Court’s

calendar; (2) vacating the default judgment of the Hon. Consuelo-Mallafre Melendez (dated

October 5, 2022); and, (3) restoring the City’s motion for summary judgment pursuant to

General Municipal Law § 50-I and CPLR 207-a, and deeming plaintiff’s underlying motion as an

opposition to the City’s summary judgment motion. Plaintiff’s motion should be denied in all

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respects because: (1) plaintiff’s motion is procedurally defective; (2) plaintiff does not offer a

reasonable excuse for their default; and, (3) plaintiff does not have a meritorious claim.

PLAINTIFF’S MOTION TO VACATE MUST
BE DENIED BECAUSE IT IS
PROCEDURALLY DEFECTIVE

2. In order to vacate an Order granting summary judgment, a movant is required to

demonstrate both: (1) a meritorious cause of action and (2) a reasonable excuse for their default.

See CPLR 5015 (a); McClaren v. Bell Atl., 817 N.Y.S.2d 395 (2006); Yurteri v. Artukmac, 813

N.Y.S.2d 741 (2006); Matter of Hye-Young Chon v. Country-Wide Ins. Co., 803 N.Y.S.2d 699

(2005). Moreover, in order to demonstrate a meritorious cause of action, the movant’s moving

papers must be accompanied by an affidavit of merit. The Court of Appeals has long held that

the failure to do so is fatal to a movant’s motion to vacate a default order. Gibbs v. St. Barnabas

Hosp., 16 N.Y.3d 74, 82 (2010); Fiore v. Galang, 64 N.Y.2d 999 (1985). Here, plaintiff’s motion

is procedurally defective since it is not accompanied by an affidavit of merit or a functional

equivalent. This procedural defect is fatal to plaintiff’s motion. Therefore, plaintiff’s motion

must be denied

II.

PLAINTIFF’S MOTION TO VACATE
SHOULD BE DENIED BECAUSE PLAINTIFF
DOES NOT PROFFER A REASONABLE
EXCUSE UNDER

3. CPLR 5015(a) expressly limits the grounds of which a court may consider

when a party moves for relief from a from a prior final judgment or order. Pursuant to 5015(a), a

court may vacate a judgment upon the ground of:

1. Excusable default, if such motion is made within
one year after the service of a copy of the judgment

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or order with written notice of its entry upon the
moving party, or, if the moving party has entered
the judgment or order, within one year after such
entry; or

2. Newly-discovered evidence which, if introduced at
the trial, would probably have produced a different
result and which could not have been discovered in
time to move for a new trial under section 4404; or

3. Fraud, misrepresentation, or other misconduct of an
adverse party; or

4. Lack of jurisdiction to render the judgment or order;
or

5. Reversal, modification or vacatur of a prior
judgment or order upon which it is based.

4. “[O]nce appellate process has been concluded, alleged errors of law which

could have been reviewed but were not, may not be addressed except insofar as grounds for

relief set forth in CLS CPLR § 5015 are present, or there has been some other compelling

circumstance justifying court’s resort to its inherent power to grant relief from judgment.” See

Pjetri v New York City Health & Hosp. Corp., 169 A.D.2d 100, 103-4 (1st Dep't 1991).

5. On October 5, 2022, this Honorable Court entered into an order granting the

City’s motion consolidating the two underlying actions and then upon consolidation, dismissing

both complaints “on the basis that this action is time barred by the statute of limitations. See

October 5, 2022 Order annexed to plaintiff’s underlying motion as Exhibit C.

6. In the underlying motion, plaintiff attempts to argue for default under excusable

default under CPLR R. 5015(a)(1). Plaintiff’s arguments, however, fail because plaintiff’s reason

for default is not excusable. Of significant note as admitted in plaintiff’s underlying motion, this

Order was issued after the City’s motion to dismiss was previously adjourned two (2) times. See

Plaintiff’s Affirmation in Support at ¶ 9. While the final adjournment date of October 5, 2021,

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did fall on Yom Kippur, plaintiff failed to submit opposition papers at any time prior to this

holiday. Moreover, this excuse certainly cannot be considered reasonable in light of the fact that

the October 5, 2022 return date was set by this Court on the motion’s original return date of May

18, 2022, leaving the plaintiff with nearly five (5) months to seek coverage for the appearance,

seek arrangements with the parties and the Court to move the return date, or take any action

whatsoever to make himself, his firm, or even a per-diem counselor available for this adjourn

date despite knowing that itfell on a day of religious observance. See WebCivil Supreme –

Appearance Details annexed hereto as Exhibit A.

7. Plaintiff next unreasonably suggests that their failure to appear for the motion

or file opposition is somehow the City’s fault. Specifically, they attempt to have the Court

excuse their shortcomings by stating that “[a]t no time did this office receive any communication

from defense counsel about the motion calendar call.” See Plaintiff’s Affirmation in Support at ¶

10. This argument clearly fails as plaintiff’s counsel recorded representation for the plaintiff on

May 27, 2021 and received notice by the City’s filing of the Notice of Motion. See NYSCEF

Confirmation annexed hereto as Exhibit B.

8. While it is clear there was an abundance of law office failure, this does not

amount to a reasonable excuse to vacate this Court’s October 5, 2022 Order. Accordingly, in

light of plaintiff’s failure to meet this prong in support of relief under CPLR R. 5015(a)(1), their

instant motion must be denied.

III.

PLAINTIFF’S MOTION TO VACATE
SHOULD BE DENIED BECAUSE PLAINTIFF
DOES NOT HAVE A MERITORIOUS CLAIM

9. Should the Court permit the plaintiff to proceed with the motion at bar despite the

aforementioned procedural defect, the Court must still deny the instant motion as plaintiff fails to

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demonstrate a meritorious claim against the City. See CPLR 5015 (a); McClaren v. Bell Atl., 817

N.Y.S.2d 395 (2006); Yurteri v. Artukmac, 813 N.Y.S.2d 741 (2006); Matter of Hye-Young

Chon v. Country-Wide Ins. Co., 803 N.Y.S.2d 699 (2005). Here, plaintiff failed to prove that his

action was commenced within the applicable statute of limitations.

10. Plaintiff attempts to argue that the failure to timely commence this action was due

to being incapacitated by the injuries he sustained from this accident. See Plaintiff’s Affirmation

in Support ¶¶ 25-28. However, it is abundantly clear from the record that this allegation of

incapacitation (the medical diagnosis or severity of which plaintiff fails to provide), raised for

the first time in opposition is clearly a feigned attempt by plaintiff’s counsel to avoid the

consequences of their own failure to timely commence this action.

11. Initially, it is critical to note that in order to establish a toll under CPLR R. 208 or

be entitled to a hearing on the subject, they must establish that an issue exists as to whether the

plaintiff was “unable to protect [their] legal rights because of an over-all inability to function in

society” during the relevant period following the accrual of the causes of action. See CPLR R.

208; McCarthy v. Volkswagen of Am., 55 NY2d 542 (1982). Here, the record makes clear that

plaintiff’s counsel’s request to apply CPLR R. 208 or obtain a hearing on the matter is based

entirely on an insincere and artificially contrived “issue” regarding plaintiff’s mental state during

the application accrual period.

12. At the outset, it is critical to note the only record assertion that the plaintiff was

“incapacitated” during the relevant accrual period comes from plaintiff’s counsel himself in

which baldly states “It is reasonably plausible to determine that Mr. Abedin was not of sound

mind to understand his legal rights from the period of his accident until his head trauma resolve.”

See Plaintiff’s Affirmation in Support ¶ 27. Of significant importance, plaintiff entirely failed to

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support this argument with any expert finding, expert affidavit, or medical records that support

this. Raising even more suspicion of plaintiff’s counsel’s insincere alelgations, they do not

include affidavits from any individuals with personal knowledge of the plaintiff’s condition

during the accrual period and do not even include an affidavit from the plaintiff himself

demonstrating his incapacitation during this time. Oddly, plaintiff cites to Hurd v. County of

Allegany, 39 A.D.2d 499 (3d Dept. 1972), which incidentally emphasizes the need for such

evidence. In Hurd, the plaintiff’s moving papers on her application for leave to file a late notice

of claim included medical records and a report from a doctor that she “still had significant

problems with attention span, concentration and learning.” Here, we have no such finding in the

medical records plaintiff attached nor do we have any evidence whatsoever establishing

plaintiff’s claims of incapacity.

13. Indeed, even the sole support given by plaintiff’s counsel’s in support of their

plainly fabricated and speculative assertions, plaintiff’s own medical records, completely

undermine the instant argument. A timeline of plaintiff’s medical care immediately after his

accident is shown on Pages 26 and 27 of these medical records. See Medical Records annexed to

Plaintiff’s underlying motion as Exhibit E at page 26. According to this timeline, plaintiff’s

care began on November 1, 2018 at 7:46 PM. Id. Plaintiff was then discharged the same day, less

than four (4) hours later at 11:51 PM. See Id at page 27. Immediately below this timeline, the

discharge information states, “Discharge Disposition: ROUTINE/HOME.” Id. Therefore,

plaintiff failed to prove in his underlying motion that he was incapacitated for any amount of

time.

14. Lastly, despite plaintiff’s counsel’s assertions that their failure to timely file the

complaint on behalf of their client was due to plaintiff’s incapacitation, the City notes for the

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Court that this alleged “incapacitation” did not prevent plaintiff’s counsel from timely filing a

Notice of Claim relating to the subject accident which was filed on January 8, 2019. See Notice

of Claim annexed hereto as Exhibit C.

15. As demonstrated above, it is clear that plaintiff’s argument regarding the

application of CPLR R. 208 is plaintiff’s last-ditch effort to avoid the consequences of their

failure to properly advance the claims of their client. As plaintiff’s counsel failed to provide any

support for his bald assertion that plaintiff was incapacitated for any amount of time, plaintiff is

not entitled to the tolling of CPLR R. 208 nor is he entitled to a hearing to determine whether he

was incapacitated as the “issue” is one that is completely feigned. This Court must enforce the

statute of limitations and dismiss plaintiff’s complaints.

16. General Municipal Law §50-i (hereinafter GML §50-i) mandates that an action

against a municipality or its agencies must be commenced within a year and 90 days of the date

on which the claim arose. Specifically, § 50-i(1) states in relevant part:

No action or special proceeding shall be prosecuted
or maintained against a city . . . unless .. . (c) the
action or special proceeding shall be commenced
within one year and ninety days after the
happening of the event upon which the claim is
based . . . (emphasis added).

Once the Statute of Limitations has expired, it is well-settled that a Court is without jurisdiction

to extend the time to commence the action in order to permit plaintiff to comply with the

requirements of General Municipal Law § 50-e and 50-i. See Pierson v. City of New York, 56

N.Y.2d 950, 955-56 (1982); Maxwell v. City of New York, 29 A.D.3d 540 2006 (2d Dept.

2006); Ellman v. Village of Rhinebeck, 27 A.D.3d 414, 415 (2d Dept. 2006); Palagashvili v. City

of New York, 26 A.D.3d 481 (2d Dept. 2006).

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17. Courts in this state have strictly interpreted G.M.L. § 50-i(1)(c) and the law is

well established that dismissal is not discretionary where actions are brought in contravention of

the statutory mandate. See Galloway v. New York City Police Department, 7 A.D.3d 444 (1st Dept.

2004); DeGradi v. Coney Island Medical Group, 172 A.D.2d 582 (2d Dept.), lv. denied, 78 N.Y.2d

860 (1991); Pierson at 56 N.Y.2d at 955; Ortiz v. City of New York, 28 A.D.2d 1098 (1st Dep’t

1967); Brennan v. City of New York, 88 A.D.2d 871 (1st Dep’t 1982); Pleasant Ridge Town

House Homeowners’ Association, Inc. v. T & D Construction Corp., 181 A.D.2d 871 (2d Dep’t

1992); Klein v. The City of Yonkers, 73 A.D.2d 931, aff’d, 53 A.D.2d 1011 (1981); Doyle v.

800 Inc., 72 A.D.2d 761, 762 (2d Dep’t 1979); Family Bargain Centers, Inc. v. Village of

Herkimer, 290 N.Y.S.2d 207, 209 (2d Dep’t 1968); Joiner v. City of New York, 26 A.D.2d 840

(1966).

18. Additionally, CPLR § 217-a also provides that the statute of limitations for

actions against public entities for personal injuries is one year and ninety days after the cause of

action accrues, unless a longer period of time is provided by any special provision of law. Under

the accrual standard of 217-a, a cause of action accrues when all of the elements necessary to

bring suit are met.

19. The Court should dismiss all claims against the City pursuant to CPLR

3211(a)(8), GML §50-I, and CPLR 217 as the Court does not have jurisdiction over the City due

to Plaintiff’s failure to commence this action within a year and 90 days of the date on which the

claim accrued. Here, plaintiff was allegedly injured on November 1, 2018 (see Exhibit A) and

thus his cause of action accrued on that same day, November 1, 2018. The year and 90 day

Statute of Limitations period would therefore require there plaintiff to commence this action no

later than January 30, 2020 in order to be timely. Plaintiff filed his Summons with Notice with

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the Court on February 3, 2020 (see Exhibit B). Because plaintiff filed his Summons with Notice

after the Statute of Limitations period expired, his filing was not timely.

20. The New York Court of Appeals has held on numerous occasions that the purpose

of such short statutes of limitations is so “that the operation of government [will] not be

trammeled by stale litigation and stale determinations.” New York City Health & Hosps. Corp.

v. McBarnette, 84 N.Y.2d 194, 206 (1994) (quoting Solnick v. Whalen, 49 N.Y.2d 224, 232

(1980)). This Court must enforce the statute of limitations. It is long settled that courts are

prohibited from exercising judicial discretion regarding statute of limitations. Arnold v. Nagel

Realty Co., 299 NY 57 (1949). In fact, the Arnold Court stated, “A statute of limitations is not

open to discretionary change by the courts, no matter how compelling the circumstances,

(citations omitted and emphasis added) and when given its intended effect such a statute is one of

repose and experience has shown that the ‘occasional hardship is outweighed by the advantages

of outlawing stale claims’ (citations omitted).” Id at 60.

21. Accordingly, it is respectfully submitted that this Honorable Court is left without

discretion to allow the plaintiff to cure their deficiency at this late time. Thus, in as much as

plaintiff has not complied with the condition precedents mandated by the General Municipal

Law and the CPLR, the plaintiff’s claims against the City must be dismissed and plaintiff’s

motion must be denied in its entirety.

WHEREFORE, it is respectfully requested that plaintiff’s motion be denied in its

entirety, and for such other and further relief as this court deems just and proper.

Dated: Brooklyn, New York
January 10, 2023

________________________
MICHAEL THORN
Assistant Corporation Counsel
(929) 486-5670

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Index No.: 502577/2020 (Action #1) 504077/2021 (Action #2)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
JOYNUL ABEDIN ,

Plaintiff,

- against -

THE CITY OF NEW YORK,

Defendant.
JOYNUL ABEDIN ,

Plaintiff,
- against -

THE CITY OF NEW YORK,

Defendant.

AFFIRMATION IN OPPOSITION

Hon. SYLVIA O. HINDS-RADIX
Acting Corporation Counsel of the City of New York
Attorney for The City of New York
350 Jay Street, 8th Floor
Brooklyn, New York 11201

Of Counsel: Michael Thorn
(929) 486-5670
NYCLIS No.: 2021-005775 (Action #2)
Due and timely service is hereby admitted.

Brooklyn, N.Y. ...........................................
2023

....................................................................... Esq.

Attorney for ...........................................................

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Document Filed Date

January 10, 2023

Case Filing Date

February 03, 2020

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Motion-Secondary: Joynul Abedin v. The City Of New York

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