Opinion
Index 451612/2016
03-01-2022
MARINA PAPADOPOULOS, as Administrator of the Estate of DEMETRIOS PAPADOPOULOS and MARINA PAPADOPOULOS, Individually Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, CITY OF NEW YORK Defendants.
Unpublished Opinion
DECISION AND ORDER
J. MACHELLE SWEETING, J.
On March 4, 2021, the Appellate Division, First Department entered an order in this case that provided, inter alia:
Order, Supreme Court, New York County (Lisa Ann Sokoloff, J.), entered December 4, 2019, which granted plaintiff's motion for sanctions and to strike the complaint only to the extent of directing defendants to provide certain discovery, unanimously modified, on the law, to the extent of precluding defendants from offering any evidence at trial, and otherwise affirmed, without costs.
On July 7, 2021, plaintiff's counsel submitted a letter to the court stating, inter alia:
[Given the decision of the First Department] We would like permission to either file summary judgment or deem summary judgment constructively granted, as of the current date, the court has no record of a Note of Issue (NOI) being filed in this case, and we would like to do so and set the matter down for inquest.
This matter was conferenced by the undersigned on August 12, 2021 and an order of the same date was issued. Pursuant to the conference, and the terms of the August 12, 2021 order, plaintiff's counsel was directed, inter alia, to: 1) file a Notice of Entry with respect to the amended order of the Appellate Division that bears the correct Index Number (451612/16) and that changed the word "complaint" to "Answer," as part of plaintiff's motion that had been granted; and 2) to file a Note of Issue ("NOI") forthwith and no later than August 19, 2021. The case was sent out for inquest "on the issue of liability and damages."
By letter dated September 3, 2021, plaintiff's counsel maintains that defendants' answer was stricken and seeks an order striking that provision of this court's August 12, 2021 order that sent the case out for an inquest on the issue of liability and damages. By letter dated September 30, 2021, defendants' counsel denies that defendants' answer was stricken and argues that even in the absence of any evidence adduced by defendants, plaintiff must still meet its prima facie burden of proving both liability and damages.
Plaintiff's letter application was not filed in accordance with the rules of this court and accordingly, is not properly before the court. Nevertheless, because defendants have submitted a written response in opposition to the same, and there being no claims of prejudice asserted therein, the letter application was received by the court in lieu of a formal motion. In their Reply Affirmation (NYSCEF Doc No 116 at ¶31) defendants contend that "plaintiff has withdrawn her9/3/21 letter request to 're-settle' this Court' 8/12/21 Order" and that "Since plaintiff has withdrawn that letter application, the only pending application before this Court is the instant motion"
On October 8, 2021, defendants moved (Motion Sequence #002) for an order, pursuant to CPLR 2221(a), vacating and/or modifying that portion of the order of this court dated August 12, 2021, that directed and "ORDERED that upon receipt of the NOI, this case shall be sent out for inquest on the issue of liability and damages." Specifically, defendants request that the subject order be modified to state that it is "ORDERED that upon receipt of the NOI, this case shall be sent out for a trial on the issue of liability and damages." Defendants' motion was returnable on October 25, 2021.
By letter application dated October 21, 2021, plaintiff requested a thirty day "nunc pro tunc adjournment" of defendants' motion or at least two weeks. Specifically, the application by counsel states:
I have been inundated with motions as the lack of trials have apparently inspired many motions on all of my personal injury cases, I currently have three (3) motions to Oppose or reply to - which is why am requesting thirty (30) days. NYCTA [defendant] has said they do not consent.
This is the first time on and my error was inadvertent. By order dated October 21, 2021, this court granted the adjournment, set a briefing schedule, and made the motion returnable on November 29, 2021. Pursuant to the briefing schedule, plaintiff's counsel served and filed an "Affirmation in Opposition to Motion Dated October 08, 2021" and defendants served and filed a "Reply Affirmation." The affirmations, along with the record in this case have been considered in deciding the issues now pending before the court.
DISCUSSION
Plaintiff argues that defendants answer is stricken, by virtue of the preclusion order, and that defendants are unable to defend themselves or dispute plaintiff's versions of the facts. Specifically, plaintiff contends that "[t]he portion of the order that states they are precluded from putting on any evidence at trial is equivalent to striking the Answer." (Affirmation NYSCEF No 115 at ¶39). While plaintiff concedes that neither the words "summary judgement" nor the words "Answer stricken" are included in the decision, plaintiff attributes such omission to an oversight on the part of the Appellate Division. Specifically, plaintiff contends that:
"We believe it was an oversight not to include the actual words 'the answer is therefore, stricken', but we can accept that it was not."
. . .
"While disappointing the AD could have either stricken the Answer or simply found in favor of Plaintiff on liability from the record, it appears to be omitted from their decision . . . .. Whether it was on oversight or a general policy not to use the record to grant Summary Judgement, we do concede the words "summary judgement", are not in the decision for 2020-02529, nor is "Answer
stricken'. However, if the Defendant cannot adduce evidence at trial, it cannot defend itself in a motion for Summary Judgement.(NYSCEF Doc. No 115)
Contrary to plaintiff's claims, however, there is no indicia on this record that defendants' answer was stricken by the Appellate Division or by the trial court. Plaintiff's repeated assertion that defendants' answer was stricken is belied by the record and plaintiff's reliance on cases in which the answer was stricken is misplaced. First, as defendants correctly argue, Judge Sokoloff's order did not strike defendants' answer.
At the appearance before the court on September 9, 2019, Judge Sokoloff specifically stated:
It is not - I'm not going to strike an answer or grant a negative inference. You will need a lot more than you've given me on that. So I say to that, that will be reserved for the trial judge. . . . It Mr. Fairley is aware that I've stricken the TA's answer before."(NYSCEF Doc. 71, Transcript at page 16).
On appeal, the First Department modified that part of Judge Sokoloff's order that gave defendants an opportunity to engage in discovery. In reaching its determination, the Appellate Division found that by its terms, the July 19, 2018 order was self executing and had specifically directed that defendants' failure to comply with discovery would result in the preclusion of evidence. That part of Judge Sokoloff's order (denying the striking of defendants' answer) was "otherwise affirmed, without costs."
In the cases relied on by plaintiff, defendant's answer was stricken, which left unrebutted, plaintiff's causes of action. Here, however, defendants' answer was not stricken. Rather, the relief granted by the Appellate Division or the imposed "sanction," which plaintiff herein refers to, was in the form of an order of preclusion.
Plaintiff also erroneously argues that: "The portion of the order that states they are precluded from putting on any evidence at trial is equivalent to striking the Answer, even if they [the Appellate Division] didn't use the actual words in the decision "Answer Stricken." (Affirmation NYSCEF No 115 at ¶39). Striking an answer and an order of preclusion are not interchangeable and plaintiff's argument in this regard is both contrary to the law and misplaced.First, an order of preclusion against defendants does not obviate plaintiff's burden of proving a prima facie case on the issues of liability and damages at trial. Second, an order of preclusion does not prevent defendants from utilizing plaintiff's evidence to cross-examine and defend their case.
In the Affirmation in Opposition to Motion Dated October 08, 2021," plaintiff's counsel states "We believe it was an oversight not to include the actual words 'the answer is therefore, stricken', but we can accept that it was not." (NYSCEF Doc. No. 115 at ¶15).
This court finds, and defendants concede that defendants are precluded from offering their own affirmative evidence as to liability. However, they are not precluded from calling their own witnesses in mitigation of damages at trial 1or from cross-examining plaintiff's witnesses; from challenging the sufficiency of plaintiff's evidence; or from impeaching plaintiff's witnesses with whatever evidence has been entered (see Mendoza v Highpoint Assoc., IX LLC, 83 A.D.3d 1 [2011]; Ramos v. Shendell Realty Group, Inc., 8 A.D.3d 41 [2004]). Here, the order of the Appellate Division did not extend beyond precluding defendant from offering affirmative evidence at trial, as the order did not strike defendants' answer.
Notably, in addressing these issues, the Appellate Division First Department aptly held in Mendoza v Highpoint Assoc., IX LLC, 83 A.D.3d 1 that:
A preclusion order does not relieve the plaintiff of the burden of proving its case. . . nor does it preclude affirmative defenses.. . .Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant[ . . ]
Indeed, it cannot be seriously disputed that a preclusion order does not prevent a defendant from challenging a plaintiff's evidence at trial by moving for a directed verdict at the end of the plaintiff' case on the ground that the latter has failed to make a prima facie case.
Accordingly, to the extent plaintiff seeks an order striking that part of this court's order sending the matter out for "inquest on the issue of liability and damages," on the grounds that defendants' answer was stricken, such application is DENIED; and to the extent that defendants now move to have that part of this court's order amended to have the matter sent out for trial on the issue of liability and damages that motion is GRANTED.
Consistent with the findings set forth herein, it is hereby
ORDERED that the Order of the undersigned, dated August 12, 2021, is modified to the extent that the word inquest shall be stricken and replaced with the word trial such that this case shall be sent out for trial on the issues of liability and damages; and it is further
ORDERED that the Note of Issue is hereby vacated with a new Note of Issue filed for a trial on liability and damages; and it is further
ORDERED that to the extent requested, leave is granted for plaintiff to file a motion for summary judgement;[3] and it is further
ORDERED that this action and any pending and further motions are transferred to the Transit Part; and it is further
ORDERED that the record in this case shall indicate this court's finding of counsel's lack of civility. In an order, dated October 22, 2021, counsel was reminded to comport themselves in accordance with the New York Rules of Professional Conduct and the New York State Standards of Civility. Here again, in this court's review of the language and tone of the written submissions, this court finds a continued failure to comply with professional standards and an absence of professional civility for which this Decision and Order serves as a written admonishment.
This is the Decision and Order of the Court.