Preview:

Sweeny v Richter 2013 NY Slip Op 30679(U) April 4, 2013 Sup Ct, New York County Docket Number: 0104467/11 Judge: Joan A. Madden Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1]

ANNED ON41812013

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT:

J.S.C.
___

PART
Justice INDEX NO.
MOTION DATE

,
'

Index Number : 104467/2011 SWEENY, HELEN H.
VS

RICHTER, ROY SEQUENCE NUMBER : 001

MOTION SEQ. NO.

-

DISMISS

The following papen, numbered I to Notice of Motionlordor to Show Cause Answering Affidavits Replying Affidavits

, were read on this motion to/for

-Affidavits - Exhibits

- Exhibits

INo(s). IN O W

A

I. CHECK ONE: 2.

..................................................................... CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION I : r GRANTED S J [ DENIED I

3. CHECK IF APPROPRIATE:

................................................

nSETTLE ORDER
UDO NOT POST

---

-P
G
NTED IN PART

ON-FINAL DISPOSITION

OTHER

SUBMIT ORDER FIDUCIARY APPOINTMENT

0REFERENCE

[* 2]

- against -

ROY RIC'I-ITER, CklRlS MONA) IAN, '1'1 IOMAS STJLLIVAN, LOIJIS TIIRCO, as Board o l Trustees of Superior Officers Council Benefits Funds of New York City Policc Jlcpartmcnt, Defendants.

In this actioii seckiiig to recovcr iiionics for allcgcdly unpaid leave benelits acquired by

plaintiff during 1icr cniploynicnt with the defendant Board of 'l'rustccs, defendants move lo
dismiss the coinplaiiit oii thc grounds that it was not tinicly commenced and/or based on a release

executed by plaintiff in connection with the settlement of a prior action. Plaintiff opposes the motion and cross moves for a default judgment against defendants based on their failurc to answer, move or otherwise respond the complaint or, in the alternative, for summary judgmciit

on the complaint.
While it appears from the record that the action was not properly commenced due to
ccrtaiii dcfccts in scrvice, including plaiiitilr s failure to indicate on the affidavits of scrvice thc

pcrsoii or ciitity being served and the type o r dociirnent served, such defects do not provide a

basis for dismissal under ihe circumstances here even thoiigh more than 120 days has passed

sincc thc commencement of this action.
Tliidcr C:PI,R 306-b, a plaintjff has 120 days alter commencement of an action to serve a

1

[* 3]

dehidant. If service is not made during that time period, "the court, upon motion, shall dismiss the action without prejudice as to thal defendant, or lipon good cause shown or in the interest of. justice, extend the time for service."

CPLR 306-b. To demonstrate "good cause" under the

statute a plaintiff must makc a thrcshold showing that he niadc rcasonably diligcnt attcrnpts at servicc. 1,eader v. Maroney, Poiizini & Spencer, 97 NY2d 95, 104 (2001). Iiere, plaintiff has made a sufficiciit showing a rcasoiiable diligent attempts at scrvicc such that dismissal is not appropriatc and thc court shall extend her time for servicc. Next, it cannot be said at this juncture that defendant is entitled to dismiss the complaint based on plaintiff`s execution of a release in a prior action. On a motion pursuant to CPLR 32 1 1

(a) (7) for failure to state a cause of. action, the complaint must be terminated liberally construed
in the light most favorable to the plaintifx, and all Factual allegations must be accepted as true.

GuEgenhcini v. Ginzburg, 43 NY2d 268 (1 977); Morone v. Morone, 50 NY2d 48 1 (1980). At the
sanic time, `"[ii]nthose circumstances whcrc thc legal conclusions and factual allcgations arc flatly contradicted by documentary evidence they are not presumed to be true or accorded every favorable inference"' Morventhow & 1,atham v. Hank of Ncw York Company, Inc., 305 AD2d 74,78 (1" Dept 2003), Q, Hiondi v. B e e h a n Hill House Apt. Corp., 257 AD2d 76, 81 (lht Dept 1999), aff d, 94 NY2d 659 (2000). In such cases, "the criterion becomes `whether the proponent has a cause of action, not whctlicr hc has statcd oiic.'" Id.,

e, v. (iuggcnhcimer

Ginzburg, 43 NY2d at 275. However, dismissal based on documentary evidence may result
"only whcre `it has been shown that a iiiatcrial fact as clainicd by tlic pleader.. .is not a fact at all

and

. . . no significant disputc cxists rcgardiiig it."' AciiLiista v. New Yorlc L i k Ins. Co., 285

A132d 73, 76 ( I " Dept ZOOl), quoting, Guggenheimer v. GinLburE, 43 NY2d at 275.

2

[* 4]

"[Tit is h m l y established that a valid relcasc which is clear and unambiguous on its face

and which is knowingly aiid voluntarily entered into will be cnforccd as a private agreement between parties. " Skluth v. United Merchants & Mfrs., Tnc., 163 AD2d 104, 106 (1st Dept

1 C)c)O)(intcrnalquotation omitted). However, in this case, the statenicnts in plaintilf's affidavit and thc docuincntary evidence raise issues offact as to whethcr thc rclcase was intended to
ciiconipass the claims in this action. In particular, plaintiff statcs that the prior proceeding was liniitcd to dcfeiidants' refusal to nialce a mandatory contribution to lier pcnsioii fund and her understanding is supportcd by a Septcmbcr 23'20 10 letter sent to defendants' counscl by plaintiff during settlcinent negotiations and the summons with endorsed coinplaint filed in the Civil Court of thc City of Ncw York. Ncxt, a complaint will not be dismissed based on release where there a factual qucstion as
to "whether the release is void as procured under duress or unconscionablc circuinstances." Gibli v. Kadosh, 279 AD2d 35, 40 (lstDept 2000). Here, plaintiffs statcincnts that she notified

counsel for the defendant Board of Trustees that she was represented by her brother, who is an attorney, but that counscl continued to negotiate cxclusively with her raises factual questions as to the circumstances surrounding the procurement of the release, as does a comparison of thc limited nature olclaims raised in the Civil Court action with the broad lariguagc of the relevant release.

See Bloss v. Va'ad Huabonim of Riverdale, 203 AD2d 36, 37 (1 '` Dept 1994).

At the same time, however, plaintiff has not demonstrated hcr cntitlcment to summary judgment with respect to the release or her entitlement to reliel under the complaint. Accordingly, plaintiflys cross motion h r summary judgment is also denied.

In view ol'the above, it is
3

[* 5]

0KI)ERED that defendants' motion to dismiss is denied; and it is fui-ther
OIWERED that plaintiffs cross motion for a dehult judgmcnt arid for surninaiy
judgnient is denied; and it is further

ORDEKl<I) that plaiiilifYs the time to serve defendants is exiended for an addition 30
days from the date of entry of this dccisioii and order; and it is fui-ther

ORDERED that dcfcndants sliall serve an answer to thc complaint within 20 days of
service of'the summons and complaint; and it is further

ORDERED that the parties shall appear for a preliminary confercncc in Part 11, room

35 1 , 60 Centre Street, on June 27, 2013 at 9:30 am.
DATED: April f:0 13
J.S.C.

4



Download 2013_30679.pdf

New York Law