Opinion
2013-03-21
Eugene STOLOWSKI, et al., Plaintiffs–Appellants, v. 234 EAST 178TH STREET LLC, Defendant–Respondent, The City of New York, Defendant. Eugene Stolowski, et al., Plaintiffs–Respondents, v. 234 East 178th Street LLC, Defendant–Appellant, The City of New York, Defendant.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for Eugene Stolowski, Brigid Stolowski, Eileen Bellew, Jeffrey G. Cool, Sr., Jill Cool, Joseph G. Di Bernardo and Brendan K. Cawley, appellants/respondents. Meyer, Suozzi, English & Klein, P.C., Garden City (Kieran X. Bastible of counsel), for Jeanette Meyran, appellant/respondent.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for Eugene Stolowski, Brigid Stolowski, Eileen Bellew, Jeffrey G. Cool, Sr., Jill Cool, Joseph G. Di Bernardo and Brendan K. Cawley, appellants/respondents. Meyer, Suozzi, English & Klein, P.C., Garden City (Kieran X. Bastible of counsel), for Jeanette Meyran, appellant/respondent.
Lewis Brisbois Bisgaard & Smith LLP, New York (John Sandercock of counsel), for 234 East 178th Street LLC, appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for 234 East 178th Street LLC, respondent.
SWEENY, J.P., ACOSTA, FEINMAN, CLARK, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered June 12, 2012, which denied defendant 234 East 178th Street LLC's motion to strike plaintiffs' note of issue or permit post-note of issue discovery, unanimously modified, on the law and the facts, the motion granted to the extent of permitting discovery on the newly asserted wrongful death claim of plaintiff DiBernardo, and otherwise affirmed, without costs. Order, same court and Justice, entered March 2, 2011, which denied plaintiffs' motions for partial summary judgment, unanimously affirmed, without costs.
Although defendant timely moved to strike the note of issue, it had previously stipulated to waive any known discovery not raised at a compliance conference held one month prior to the making of the motion. Since defendant knew that it needed discovery concerning updated medical and special damages, but failed to seek it, it lost its entitlement to same ( see Sereda v. Sounds of Cuba, Inc., 95 A.D.3d 651, 944 N.Y.S.2d 538 [1st Dept. 2012] ). However, defendant remains entitled to all material and necessary discovery concerning the wrongful death claim of Di Bernardo, a claim not asserted until after the compliance conference ( see Francescon v. Gucci Am., Inc., 71 A.D.3d 528, 897 N.Y.S.2d 73 [1st Dept. 2010] ).
Plaintiffs' motion for partial summary judgment on liability pursuant to General Municipal Law § 205–a was properly denied. To the extent the trial court and this Court used the word “illegal” in the decisions emanating from the criminal case arising from this fire ( People v. Rios, 87 A.D.3d 916, 930 N.Y.S.2d 180 [1st Dept. 2011] ), such description of the subject apartment alterations amounted to dictum which has no binding collateral estoppel effect ( see Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 A.D.3d 128, 142, 871 N.Y.S.2d 48 [1st Dept. 2008], lv. denied13 N.Y.3d 710, 2009 WL 3428552 [2009] ). In the criminal trial, the issue of statutory violations was not before the jury.
Collateral estoppel aside, plaintiffs failed to set forth a prima facie entitlement to summary judgment, as they submitted no admissible nonhearsay evidence that defendant was on notice of the condition alleged to have violated the statutes pleaded ( cf. Lusenskas v. Axelrod, 183 A.D.2d 244, 248–249, 592 N.Y.S.2d 685 [1st Dept. 1992], appeal dismissed81 N.Y.2d 300, 598 N.Y.S.2d 166, 614 N.E.2d 729 [1993] ). In any event, defendant's experts raised issues of fact as to whether any statutes were violated, creating triable issues of fact barring summary resolution ( see Pirraglia v. CCC Realty N.Y. Corp., 35 A.D.3d 234, 235, 828 N.Y.S.2d 6 [1st Dept. 2006];see also Friedman v. BHL Realty Corp., 83 A.D.3d 510, 922 N.Y.S.2d 293 [1st Dept. 2011] ).