Full text
Rodriguez v. Langston Condominium
Rodriguez v Langston Condominium 2024 NY Slip Op 33433(U) September 27, 2024 Supreme Court, New York County Docket Number: Index No. 153678/2023 Judge: Mary V. Rosado 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.
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice --------------------X INDEX NO. 153678/2023 WALTER RODRIGUEZ, MOTION DATE 09/10/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
THE LANGSTON CONDOMINIUM, GMNY CONSTRUCTION SERVICE INC.,CORE SCAFFOLD DECISION + ORDER ON SYSTEMS INC., MOTION AND CROSS MOTION
Defendant. --------------------X
THE LANGSTON CONDOMINIUM Third-Party Index No. 595043/2024 Plaintiff,
-against-
BHA CONSULTANTS LLC
Defendant. --------------------X
GMNY CONSTRUCTION SERVICE INC. Second Third-Party Index No. 595243/2024 Plaintiff,
-against-
M.D. SCAFFOLDING, INC. Defendant. --------------------X
CORE SCAFFOLD SYSTEMS INC. Third Third-Party Index No. 595262/2024 Plaintiff,
-against-
M.D. SCAFFOLDING, INC. Defendant. --------------------.X
153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 1 of 5 Motion No. 001
[* 1]
The following e-filed documents, listed by NYSCEF document number (Motion 001) 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 98, 99, 100, 101, 102, 103, 104, 105, 106,107,108,109,110,111,112 were read on this motion to/for AMEND CAPTION/PLEADINGS
Upon the foregoing documents, Defendant/Third-Party Plaintiff Langston Condominium's
("Langston") motion seeking leave to amend its Answer, for an order compelling certain
discovery, and requesting Plaintiff post security, is granted in part and denied in part.
Defendant/Third-Party Plaintiff Core Scaffold Systems Inc.'s ("Core") cross-motion seeking the
same relief is granted in part and denied in part.
L Background
This is an action for alleged personal injuries sustained by Plaintiff as a result of violations
of the New York Labor Law (NYSCEF Doc. 1). Langston now seeks leave to amend its Answer
to assert a counterclaim and an affirmative defense of fraud against Plaintiff. Langston also seeks
to compel responses to their discovery demands. Langston alleges they should be granted leave to
assert these claims because Plaintiff has two prior lawsuits with similar mechanisms of injury.
Langston claims Plaintiffs alleged injuries in those prior lawsuits overlap with the alleged injuries
in this lawsuit. Langston also claims that Plaintiff is treating with several "suspect medical
providers" (NYSCEF Doc. 74 at ,i 12). Core seeks leave to amend the same counterclaim and
affirmative defense in its crossclaim. They also seek a bond in the amount of $10,000 to cover
potential costs should this case be dismissed as frivolous.
Plaintiff opposes. Plaintiff argues the application is premature as discovery remams
ongoing and depositions have not yet occurred. Plaintiff further argues that discrepancies in
medical narratives do not give rise to a colorable fraud claim and therefore Langston and Core
have failed to state a claim for fraud. Plaintiff does not dispute that a bond must be posted, but he
153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 2 of 5 Motion No. 001
[* 2]
asks that it be in the statutory amount of $500. Plaintiff also argues that Defendants failed to
support their motions with CPLR compliant affirmations, however Defendants have since
corrected this technical default.
II. Discussion
A. Motion and Cross-Motion to Compel
The motion and cross-motion to compel have been resolved at the preliminary conference
held with the Court on July 24, 2024 (see NYSCEF Doc. 113). To the extent the motions to compel
have not been resolved pursuant to the preliminary conference order, they are denied, without
prejudice, as they were made in violation of Part 33's rules. As the parties were directed at the
preliminary conference, should discovery issues arise they shall e-mail the Court to request a
conference to resolve those issues.
B. Leave to Amend
Leave to amend pleadings is freely granted in the absence of prejudice if the proposed
amendment is not palpably insufficient as a matter of law (Mashinksy v Drescher, 188 AD3d 465
[1st Dept 2020]). A party opposing a motion to amend must demonstrate that it would be
substantially prejudiced by the amendment, or the amendments are patently devoid of merit
(Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co., 298 AD2d 180, 181
[1st Dept 2002]).
For purposes of a motion seeking leave to amend, Defendants have sufficiently alleged
sufficient facts to make out a colorable fraud counterclaim and affirmative defense against
Plaintiff. Plaintiffs numerous accidents which occurred in the same manner, contradictory medical
records, and his involvement with several medical providers who are implicated in a Federal RICO
action.
153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 3 of 5 Motion No. 001
[* 3]
C. CPLR § 8501(a)
Defendants' motion requesting Plaintiff post a bond for security of costs in the amount of
CPLR § 850l(a) is granted in part. CPLR § 8501(a) mandates that except where a plaintiff has
been granted permission to proceed as a poor person or is the petitioner in a habeas corpus
proceeding, the Court shall order security for costs if the plaintiff is not a resident of New York
(see also Yarwood v County of Suffolk, 174 AD3d 954 [2d Dept 2019]; Clement v Durban, 147
AD3d 39 [2d Dept 2016]). CPLR § 8503 states that security for costs shall be made in an amount
of five hundred dollars in counties within the City of New York, or such greater amount as shall
be fixed by the Court. It is undisputed that Plaintiff is a resident of New Jersey, and therefore he
is required to post security. However, although Defendants seek the posting of a bond in the
amount of $10,000.00, the Court finds this to be excessive given the lack of any supporting
evidence of these costs. Thus, the Court elects to adopt the statutory requirement of a $500.00
bond.
Accordingly, it is hereby,
ORDERED that Langston's motion and Core's cross-motion seeking leave to amend their
pleadings is granted, and the proposed pleadings annexed to the motion papers (NYSCEF Docs.
75 and 92) shall be deemed served upon service of a copy of this order with notice of entry thereof;
and it is further
ORDERED that Langston's motion and Core's cross-motion seeking Plaintiff to post
security for costs is granted; and it is further
ORDERED that pursuant to CPLR 8501(a) and 8503, plaintiff shall, within thirty (30) days
of service of this Decision and Order, post security for costs in the amount of $500.00, and the
matter is stayed pursuant to CPLR 8502 until plaintiff posts said security; and it is further
153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 4 of 5 Motion No. 001
[* 4]
ORDERED that the stay pursuant to CPLR 8502 shall be automatically lifted upon Plaintiff
posting his bond; and it is further
ORDERED that Langston's motion and Core's cross-motion seeking to compel certain
discovery is denied to the extent it has not become moot; and it is further,
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this
Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
9/27/2024 h" V (~ .. ,., JS<. DATE HO~ . MARY V. ROSADO, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
153678/2023 RODRIGUEZ, WALTER vs. THE LANGSTON CONDOMINIUM ET AL Page 5 of 5 Motion No. 001
[* 5]