Fofana v 41 W. 34th St., LLC, 2010 NY Slip Op 01830 (App. Div., 1st, 2010)
On December 3, 2004, Fofana commenced an action against, inter alia,
41 West, GSL, and Winoker, and on February 28, 2006, he commenced a
separate action against Midboro. Both actions were filed in Supreme
Court, New York County.
Previously, on August 5, 2004,
Haynes had commenced a personal injury action in Supreme Court, Bronx
County, against several of the same defendants. Eventually, the Haynes
action was consolidated in the Bronx with plaintiff's two New York
County actions. Fofana was impleaded as a third-party defendant in the Haynes
By notice dated October 5, 2006, the defendants in the Haynes action
moved for summary judgment on the grounds, inter alia, that the
evidence established that the freight elevator complied with the
elevator code in effect when built, and contained no defects at the time
of the accident. They contended that the elevator door was caused to be
opened by the force of being struck by plaintiff's and Haynes's weight,
as the two fought.
On August 17, 2007, the trial court granted the motion, on the
ground, inter alia, that there was no evidence that defendants had any
notice that the fourth floor hoistway doors had been defective prior to
the incident. In an order entered May 19, 2009, this Court upheld the
dismissal of the complaint, finding that defendants had made a prima
facie showing that the accident was not caused by any defect in the
hoistway door (62 AD3d 519, 521 ). In particular, the Court noted
that an elevator inspector from the New York City Department of
Buildings who had inspected the accident scene within 80 minutes after
the accident, found that the sliding panel for the elevator door "was
bent and protruded into the hoistway in a manner indicating that a
substantial horizontal force had been exerted against the sliding panel"
(id. at 520). The Court also observed that the evidence
indicated that there had not been any problems with the hoistway doors
before the accident occurred (id.).
By notice dated August 31, 2007, two weeks after the trial court
granted summary judgment in the Haynes action, the defendants in
the Fofana action moved to amend their answers to assert the
affirmative defenses of collateral estoppel and res judicata, and, upon
the granting of said relief, for dismissal on those grounds pursuant to
By order entered January 15, 2008, the court granted leave to
amend, but denied the motion to dismiss. In so doing, the court found
that, as discovery in the Fofana action had not been completed at
the time of the Haynes motion, Fofana was not in a position to
meaningfully litigate the issues raised on the motion to dismiss.
Subsequently, on February 19, 2008, defendants, who did not
appeal from the January 15 order, moved for leave to file a summary
judgment motion and, upon the granting of leave, for summary judgment
dismissing the complaint. In support of their motion, defendants noted
that the Haynes note of issue had been filed on March 7, 2006,
while the note of issue in this case was only filed on May 7, 2007. They
also observed that the Haynes summary judgment motion had been
served on all parties to the action, including Fofana, who was a
third-party defendant in that action.
Defendants argued they had a reasonable belief that plaintiff, a
party to the Haynes action, would be bound by the Haynes
decision, which was dispositive of all the issues herein. Thus, they
claimed, they made a motion to dismiss pursuant to CPLR 3211(a)(5),
rather than a motion for summary judgment pursuant to CPLR 3212. They
aver that this reasonable belief constitutes "good cause" for the delay
in moving for summary judgment. In opposition, Fofana argued that
defendants failed to show why they could not have sought alternative
relief when filing the motion to dismiss, and that the excuse was akin
to inexcusable law office failure.
The trial court denied the motion as untimely, finding that the
proffered excuse constituted law office failure, with the result that
the requisite good cause to entertain the motion had not been shown. The
court reasoned that defendants should have recognized that the motion [*3]to dismiss could be denied, and thus the
motion for summary judgment should have been made with the prior motion.
CPLR 3212(a) provides that the "court may set a date after which
no [dispositive] motion may be made," and, "[i]f no such date is set by
the court, such motion shall be made no later than one hundred twenty
days after the filing of the note of issue, except with leave of court
on good cause shown." In Brill v City of New York (2 NY3d 648 ),
the Court of Appeals made clear that the statutory deadline should be
strictly enforced, in order to prevent the filing of "[e]leventh-hour
summary judgment motions," a practice that "ignores statutory law,
disrupts trial calendars, and undermines the goals of orderliness and
efficiency in state court practice" (id. at 650-651). It
concluded that the "good cause" called for by CPLR 3212(a) requires a
"satisfactory explanation for the untimeliness – rather than simply
permitting meritorious, nonprejudicial filings, however tardy" (id.
at 652) (see also Miceli v State Farm Mut. Auto. Ins. Co.,
3 NY3d 725 ). This Court has subsequently observed that
"courts may not excuse a late motion, no matter how meritorious, upon a
perfunctory claim of law office failure" (Azcona v Salem, 49 AD3d 343, 343 ).
In this case, however, it is undisputed that defendants made a
timely motion to dismiss on the grounds of collateral estoppel.
Moreover, in defending the "failure" to make a simultaneous motion for
summary judgment, they noted that Fofana, as a third-party defendant in
the Haynes action, had been served with the motion papers.
Regardless of whether he chose to submit papers in opposition to the
motion, he was put on notice that the defendants were taking the
position that the elevator door was not defective prior to the accident,
and that the accident occurred as a result of the force exerted by the
weight of the two combatants as they fell against the door. He thus had
the opportunity to litigate the issue, and yet declined. Furthermore,
since the note of issue had not yet been filed in his own action, Fofana
still had the opportunity to pursue further discovery with regard to
this defense, in the event such a motion was made in his own case.
Thus, defendants' averment that they had good cause not to file a
motion for summary judgment contemporaneously with the motion to
dismiss is valid. The disposition of the Haynes summary judgment
motion provided sufficient grounds either to invoke collateral estoppel
or to dismiss the Fofana case. The conditions for the
applicability of collateral estoppel are an identity of issue which has
been necessarily decided in the prior action and is decisive of the
present action, and a full and fair opportunity to contest the decision
now said to be controlling (Schwartz v Public Admin. of County of
Bronx, 24 NY2d 65, 71 ). The issue of whether the elevator was
defective was at the heart of the Haynes case, and Fofana was a
party to that action. Even as a third-party defendant he had a vested
interest in opposing any contention that the elevator door was not the
cause of the accident. Like the codefendants in Schwartz, he was
in every respect an antagonist to the defendants/third-party plaintiffs
who impleaded him, and who asserted that the elevator door was not
defective (id. at 72).
We therefore conclude that defendants were not guilty of law
office failure in not also moving for summary judgment.
The bold is mine.