Preview
FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
—
----------------------------------------------------------------------X Index No.: 706982/2015E
ROBERT CLARKE and WINSTON CLARKE,
Plaintiffs,
-against- Affirmation in Opposition
JESUS D. ORELLANA, RANDY A. MORILLO
and MICHAEL POLO,
Defendants.
—X
----------------------------------------------------------------------X
Brian Valdivia, Esq., an attorney duly admitted to practice before the courts of this State,
affirms the following to be true under penalty of perjury:
1. I am associated with the firm of Paris & Chaikin, PLLC, attorneys for Plaintiffs,
and as such am fully familiar with the facts and circumstances hereinafter contained, the source of
my knowledge being the file maintained by this office.
2. I respectfully submit this Affirmation in Opposition to the motion of Defendant,
Jesus D. Orellana, seeking an Order granting the defendant, Jesus D. Orellana, leave to make his
late summary judgment motion, and for an order granting his summary judgment dismissing
plaintiff Winston Clarke's Complaint as well as any and all cross-claims.
Defendant's Motion is Premature
3. The defense rests its arguments on the order dated November 29, 2017, stating that
the plaintiff, Winston Clarke is precluded from offering medial evidence at the time of trialand
therefore his complaint should be dismissed. However, the subject order state that, "IME to be
3/15/2018."
held on or before March 15, 2018 has not yet come. Therefore, the plaintiff, Winston
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Clarke, is not yet precluded as a matter of law and defendant's motion must be denied in its
entirety.
4. Furthermore, the order specifically reads, "Defendant to designate IME w/in 15
days."
Defendant failed to designate as per the order.
Defendant is Not Entitled to File Late Motion for Summary Judgement
5. The 120 Day Rule in CPLR 3212(a) provides that after issue has been joined, the
court may set a deadline for service of summary judgment motions, which will be no earlierthan
30 days after the filing of the note of issue. If the court does not set a date, the deadline for making
summary judgment motions is no later than 120 days after filing of the note of issue, except upon
leave and good cause shown.
6. No where in the subject order dated November 29, 2017 does it state that the time
to file or serve motions for summary judgement has been extended. It is to be assumed that the
court did not intend to extend such time in its order.
7. Furthennore, the New York State Court of Appeals made it clear that the courts
should not countenance late summary judgment motions, without a showing of good cause, even
if it means permitting less than meritorious claims or defenses to proceed to trial. Brill v City of
New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 (2004).
Cause"
8. The "Good standard in CPLR 3212(a), relied on by the defense, requires a
of good cause for the in the motion - a explanation for the
showing delay making satisfactory
untimeliness - rather than non-prejudicial however tardy. 2
simply permitting meritorious, filings,
N.Y.3d at 652, 781 N.Y.S.2d at 264, 81 N.E.2d at 434.
cause"
9. The Courts have concluded that "good requires a satisfactory explanation
for movant's delay, and have refused to entertain the motion if no such showing has been made
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(see e.g. Carvajal v M Madison LLC, 297 AD2d 550, 551 [1st Dept 2002] ; Hilton v City of New
Rochelle, 298 AD2d 360, 360 [2d Dept 2002] ; Ripepe v Crown Equip. Corp., 300 AD2d 647 [2d
Dept 2002]; Falcone v Khurana, 294 AD2d 535, 536 [2d Dept 2002]; Borelli v Gegaj, 248 AD2d
299 [1st Dept 1998]; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937, 937 [4th Dept
1998]; John v Bastien, 178 Misc 2d 664, 666-667 [Civ Ct, Kings County 1998] ; see also Luciano
v Apple Maintenance & Servs., 289 AD2d 90, 90-91 [1st Dept 2001] [movant's explanation was
an adequate showing of good cause for the delay]).
10. Only the movant can show good cause-as well as by the purpose of the
amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all,or
cause."
a perfunctory excuse, cannot be "good Brill v City of New York, 2 N.Y.3d 648, 781
N.Y.S.2d 261, 814 N.E.2d 431 (2004).
11. The Court acknowledged the consequences of itsdecision: "What is to happen in
this case is that summary judgment will be reversed and the case returned to the trial calendar,
where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the
courts'
case during trial.Hopefully, as a result of the refusal to countenance the statutory violation,
there will be fewer, if any, such situations in the future, both because itis now clear that "good
cause"
means good cause for the delay, and because movants will develop a habit of compliance
looms."
with the statutory deadlines for summary judgment motions rather than delay until trial 2
N.Y.3d at 653, 781 N.Y.S.2d at 265, 81 N.E.2d at 435.
12. Based on same, it isrespectfully submitted that the motion of Defendant, Jesus D.
Orellana, be denied.
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WHEREFORE, your Affirmant respectfully requests that the within motion of Defendant,
Jesus D. Orellana, be in all respects denied, together with such other, further, and different relief
as to this Court seems just and proper.
Dated: New York, New York
March 1, 2018
Brian Valdivia, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK Index No.: 706982/2015E
COUNTY OF QUEENS
ROBERT CLARKE and WINSTON CLARKE,
Plaintiffs,
-against-
JESUS D. ORELLA, RANDY A. MORILLO
and MICHAEL POLO,
Defendants.
AFFIRMATION IN OPPOSITION and ANNEXED EXHIBITS
Paris & Chaikin, PLLC
14 Penn Plaza
Suite 2202
New York, New York 10122
{212)
(212) 742-0476
5 of 5
Preview
FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS — ----------------------------------------------------------------------X Index No.: 706982/2015E ROBERT CLARKE and WINSTON CLARKE, Plaintiffs, -against- Affirmation in Opposition JESUS D. ORELLANA, RANDY A. MORILLO and MICHAEL POLO, Defendants. —X ----------------------------------------------------------------------X Brian Valdivia, Esq., an attorney duly admitted to practice before the courts of this State, affirms the following to be true under penalty of perjury: 1. I am associated with the firm of Paris & Chaikin, PLLC, attorneys for Plaintiffs, and as such am fully familiar with the facts and circumstances hereinafter contained, the source of my knowledge being the file maintained by this office. 2. I respectfully submit this Affirmation in Opposition to the motion of Defendant, Jesus D. Orellana, seeking an Order granting the defendant, Jesus D. Orellana, leave to make his late summary judgment motion, and for an order granting his summary judgment dismissing plaintiff Winston Clarke's Complaint as well as any and all cross-claims. Defendant's Motion is Premature 3. The defense rests its arguments on the order dated November 29, 2017, stating that the plaintiff, Winston Clarke is precluded from offering medial evidence at the time of trialand therefore his complaint should be dismissed. However, the subject order state that, "IME to be 3/15/2018." held on or before March 15, 2018 has not yet come. Therefore, the plaintiff, Winston 1 of 5 FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018 Clarke, is not yet precluded as a matter of law and defendant's motion must be denied in its entirety. 4. Furthermore, the order specifically reads, "Defendant to designate IME w/in 15 days." Defendant failed to designate as per the order. Defendant is Not Entitled to File Late Motion for Summary Judgement 5. The 120 Day Rule in CPLR 3212(a) provides that after issue has been joined, the court may set a deadline for service of summary judgment motions, which will be no earlierthan 30 days after the filing of the note of issue. If the court does not set a date, the deadline for making summary judgment motions is no later than 120 days after filing of the note of issue, except upon leave and good cause shown. 6. No where in the subject order dated November 29, 2017 does it state that the time to file or serve motions for summary judgement has been extended. It is to be assumed that the court did not intend to extend such time in its order. 7. Furthennore, the New York State Court of Appeals made it clear that the courts should not countenance late summary judgment motions, without a showing of good cause, even if it means permitting less than meritorious claims or defenses to proceed to trial. Brill v City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 (2004). Cause" 8. The "Good standard in CPLR 3212(a), relied on by the defense, requires a of good cause for the in the motion - a explanation for the showing delay making satisfactory untimeliness - rather than non-prejudicial however tardy. 2 simply permitting meritorious, filings, N.Y.3d at 652, 781 N.Y.S.2d at 264, 81 N.E.2d at 434. cause" 9. The Courts have concluded that "good requires a satisfactory explanation for movant's delay, and have refused to entertain the motion if no such showing has been made 2 of 5 FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018 (see e.g. Carvajal v M Madison LLC, 297 AD2d 550, 551 [1st Dept 2002] ; Hilton v City of New Rochelle, 298 AD2d 360, 360 [2d Dept 2002] ; Ripepe v Crown Equip. Corp., 300 AD2d 647 [2d Dept 2002]; Falcone v Khurana, 294 AD2d 535, 536 [2d Dept 2002]; Borelli v Gegaj, 248 AD2d 299 [1st Dept 1998]; DiFusco v Wal-Mart Discount Cities, 255 AD2d 937, 937 [4th Dept 1998]; John v Bastien, 178 Misc 2d 664, 666-667 [Civ Ct, Kings County 1998] ; see also Luciano v Apple Maintenance & Servs., 289 AD2d 90, 90-91 [1st Dept 2001] [movant's explanation was an adequate showing of good cause for the delay]). 10. Only the movant can show good cause-as well as by the purpose of the amendment, to end the practice of eleventh-hour summary judgment motions. No excuse at all,or cause." a perfunctory excuse, cannot be "good Brill v City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 (2004). 11. The Court acknowledged the consequences of itsdecision: "What is to happen in this case is that summary judgment will be reversed and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the courts' case during trial.Hopefully, as a result of the refusal to countenance the statutory violation, there will be fewer, if any, such situations in the future, both because itis now clear that "good cause" means good cause for the delay, and because movants will develop a habit of compliance looms." with the statutory deadlines for summary judgment motions rather than delay until trial 2 N.Y.3d at 653, 781 N.Y.S.2d at 265, 81 N.E.2d at 435. 12. Based on same, it isrespectfully submitted that the motion of Defendant, Jesus D. Orellana, be denied. 3 of 5 FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018 WHEREFORE, your Affirmant respectfully requests that the within motion of Defendant, Jesus D. Orellana, be in all respects denied, together with such other, further, and different relief as to this Court seems just and proper. Dated: New York, New York March 1, 2018 Brian Valdivia, Esq. 4 of 5 FILED: QUEENS COUNTY CLERK 03/08/2018 01:09 PM INDEX NO. 706982/2015 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 03/08/2018 SUPREME COURT OF THE STATE OF NEW YORK Index No.: 706982/2015E COUNTY OF QUEENS ROBERT CLARKE and WINSTON CLARKE, Plaintiffs, -against- JESUS D. ORELLA, RANDY A. MORILLO and MICHAEL POLO, Defendants. AFFIRMATION IN OPPOSITION and ANNEXED EXHIBITS Paris & Chaikin, PLLC 14 Penn Plaza Suite 2202 New York, New York 10122 {212) (212) 742-0476 5 of 5