Lesser v. Little Italy Pizza of Troy, LLC

Lesser v Little Italy Pizza of Troy, LLC 2025 NY Slip Op 30030(U) January 6, 2025 Supreme Court, New York County Docket Number: Index No. 162065/2019 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. 162065/2019 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 01/06/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART 14 Justice ---------------------------------------------------------------------------------X INDEX NO. 162065/2019 EVAN LESSER, MOTION DATE 01/03/2025 Plaintiff, MOTION SEQ. NO. 001 002 003 -v- LITTLE ITALY PIZZA OF TROY, LLC,FRANCMEN 688 LLC,6TH AVENUE LITTLE ITALY CORP, TAIM DECISION + ORDER ON RESTAURANT HOLDINGS LLC,TAIM FLATIRON LLC, MOTION Defendant. ---------------------------------------------------------------------------------X

6TH AVENUE LITTLE ITALY CORP Third-Party Index No. 595831/2023 Plaintiff, -against- DAVID’S TEA (USA) INC., SYNDEYS CHEW CHOO INC. D/B/A CINNABON Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .

The following e-filed documents, listed by NYSCEF document number (Motion 002) 136, 137 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .

The following e-filed documents, listed by NYSCEF document number (Motion 003) 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE .

Motion Sequence Numbers 001, 002 and 003 are consolidated for disposition. The motions by defendant 6th Avenue Little Italy Corp. (MS001), by third-party defendant David’s

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Tea (USA) Inc. (MS002) and by defendant Francmen 688 LLC (MS003), all of which seek to strike the note of issue, are granted without opposition as described below.

Background In this more than five-year old case, plaintiff contends that he was delivering food products to a restaurant on June 14, 2019 when he was injured while descending stairs. The parties entered into a preliminary conference stipulation dated July 27, 2021 (and so ordered by a prior judge assigned to the case) in which they agreed to complete all depositions by November 2021 (NYSCEF Doc. No. 15). Subsequent discovery stipulations followed in 2022, 2023 and 2024, nearly all of which contained deposition deadlines so-ordered by the Court (see e.g., NYSCEF Doc. No. 39, 49, 58, 62, 82).

The case was eventually assigned to this part and this Court so-ordered a discovery stipulation dated January 24, 2024 that set specific dates for the three remaining depositions (defendant 6th Ave. Little Italy Corp., Taim Flatiron LLC and David’s Tea (USA) Inc. (NYSCEF Doc. No. 82). Also included in this order was a deadline for the parties to update the Court about the status of discovery by April 4, 2024 (id.). The parties declined to update the Court and missed a subsequent update deadline (see NYSCEF Doc. Nos. 84 and 85).

The parties then uploaded an untimely stipulation concerning discovery (NYSCEF Doc.

No. 86) that set deposition dates for the aforementioned three parties in September 2024. For some reason, the parties ignored a subsequent update deadline of October 22, 2024 and so the Court ordered that a note of issue be filed by November 12, 2024 on the assumption that the parties had complied with their own discovery schedule (NYSCEF Doc. No. 88). Plaintiff then filed the note of issue.

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The moving papers from the three moving parties indicate that despite the countless orders cited above, the above-cited depositions have not yet occurred. Defendant Francmen 688 LLC contends that depositions did not go forward “Due to scheduling conflicts not involving moving defendant” (NYCSEF Doc. No. 118, ¶ 6).

The Court grants the motions without opposition (as plaintiff did not oppose) only to the extent that the note of issue is vacated. However, the Court observes that there is no need for another discovery conference and this Court declines to so-order any further discovery stipulations. Clearly, Court orders and conferences have had little effect in compelling the parties to complete depositions in this five-year old case. Of course, nothing prevents the parties from making motions.

The record demonstrates that the parties consider Court-ordered deadlines to be mere suggestions that can be repeatedly ignored time after time. Most concerning for this Court is that the parties did not cite any good reason for why they violated multiple Court orders that contained deposition deadlines. For instance, counsel for defendant 6th Avenue Little Italy Corp. uploaded a letter on October 23, 2024 in which he requested a discovery conference and noted that “the parties were unable to agree on dates for the examinations before trial” (NYSCEF Doc.

No. 89). He added that he had circulated a proposed order on September 26, 2024 that requested dates for depositions (id.).

This correspondence is baffling. The parties had, in fact, agreed on specific dates for depositions in NYSCEF Doc. No. 86 with the final deposition to be taken on September 16, 2024. And yet there was no mention of why the depositions did not go forward or why the parties ignored previous Court orders (see NYSCEF Doc. No. 82 [setting specific deposition dates in April and May 2024]). Moreover, this letter was untimely filed as the Court had already

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The Court will set a note of issue deadline for July 31, 2025. That should provide enough time for the parties to do discovery.

Accordingly, it is hereby ORDERED that the motions to strike the note of issue are granted only to the extent that the note of issue is vacated and the case is stricken from the trial calendar; and it is further ORDERED that, within 15 days from the entry of this order, movants shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk’s Office, who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further ORDERED that such upon the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website)]; and it is further ORDERED that the new note of issue deadline is July 31, 2025.

1/6/2025 $SIG$ DATE ARLENE P. BLUTH, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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