| Walia v Nassau County |
| 2009 NY Slip Op 03162 [61 AD3d 853] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Balbir S. Walia, Appellant, v Nassau County et al.,Respondents. |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), forrespondents.
In an action, inter alia, to recover damages for assault, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Brandveen, J.), dated December 5, 2007, which denied hismotion to restore the action to active status and to the trial calendar, and granted the defendants'cross motion, in effect, for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law and the facts, with costs, the plaintiff's motionto restore the action to active status and to the trial calendar is granted, and the defendants' crossmotion, in effect, for summary judgment dismissing the complaint is denied.
In September 1999 the plaintiff commenced this action against the defendants alleging, interalia, that while he was incarcerated in solitary confinement at the Nassau County Jail in EastMeadow between September 8, 1998, and September 10, 1998, he was physically andpsychologically abused by an "Officer Bourbon." Thereafter, issue was joined, discovery wasconducted, and a note of issue was filed. In an order dated February 18, 2002, the Supreme Courtdenied the plaintiff's motion pursuant to CPLR 3124 to compel the depositions of severalcorrection officers. In deciding that motion, the court reviewed the defendants' various discoveryresponses and stated that they had "confirmed that there is (or was) no 'Officer Bourbon'employed by the County." In early January 2006, approximately two weeks before the scheduledtrial date, the defendants moved for leave to make a late motion for summary judgment [*2]dismissing the complaint. Alternatively, they moved, in limine, forthe preclusion of any evidence involving conduct attributed to "Officer Bourbon." The plaintiffopposed the motion, arguing, inter alia, that if he incorrectly identified the perpetrator, he shouldnonetheless be allowed to testify that he was assaulted by an unknown officer or by a "JohnDoe." In an order dated May 10, 2006, the Supreme Court granted that branch of the defendants'motion which was for leave to serve a late motion for summary judgment dismissing thecomplaint and, upon considering the merits, inter alia, granted that branch of the motion whichwas in limine to preclude the plaintiff from adducing evidence at trial "to the extent of notallowing testimony as to a Corrections Officer 'John Doe.' "
The plaintiff appealed from so much of the order dated May 10, 2006, as granted that branchof the defendants' motion which was in limine to preclude the plaintiff from adducing evidenceat trial based on the alleged conduct of a Correction Officer "John Doe." In an order dated June5, 2007, this Court dismissed the appeal, determining that while the defendants denominatedtheir motion as one for summary judgment, it was, in fact, a motion in limine, seeking topreclude reference to a Correction Officer "John Doe" at trial. As such, the order dated May 10,2006, which determined the admissibility of evidence before trial, was neither appealable as ofright nor by permission, and was not the functional equivalent of an award of summary judgment(see Walia v Nassau County, 41AD3d 466, 467 [2007]).
In July 2007 the plaintiff moved to restore the action to active status and to the trial calendar.The defendants cross-moved, in effect, for summary judgment dismissing the complaint on theground that the plaintiff would be unable to establish a prima facie case at trial. The SupremeCourt denied the plaintiff's motion and granted the defendants' cross motion. The plaintiffappeals and we reverse.
The Supreme Court improperly denied the plaintiff's motion to restore this matter both toactive status and to the trial calendar. The court should have done so, without the need for anymotion practice, upon receiving this Court's decision and order dated June 5, 2007, determining,inter alia, that the order dated May 10, 2006, was not equivalent to an award of summaryjudgment (see generally Brill v City ofNew York, 2 NY3d 648, 653 [2004] [when a grant of summary judgment is reversed onappeal the case is returned to the trial calendar]). Moreover, the Supreme Court, apparentlyconcluding that the plaintiff would be unable to establish at trial that an "Officer Bourbon"assaulted him, incorrectly stated that it had already determined, in the order dated February 18,2002, that "Officer Bourbon" did not exist. A logical reading of the order dated February 18,2002, indicates that the court, in disposing of the plaintiff's motion to compel discovery, simplymentioned in passing that the defendants had "confirmed" that there was no "Officer Bourbon" intheir employ. No ruling or determination was made regarding the existence or nonexistence of an"Officer Bourbon." Since it is only that which a court adjudicates and not what it says that hasany legal effect (see Towley v King Arthur Rings, 40 NY2d 129, 132-133 [1976]; Robinson Motor Xpress, Inc. v HSBCBank, USA, 37 AD3d 117, 123-124 [2006]), the Supreme Court should not have reliedupon such nonadjudicative language in denying the plaintiff's motion to restore the case to activestatus and to the trial calendar.
Since the Supreme Court should have granted the plaintiff's motion to restore the case toactive status and to the trial calendar, it follows that the defendants' cross motion, in effect, forsummary judgment dismissing the complaint should have been denied.
The parties' remaining contentions either are improperly raised for the first time on appeal(see [*3]Green Apple Mgt. Corp. v Aronis, 55 AD3d 669 [2008]),concern matter dehors the record that cannot be considered on appeal (see Mendoza v Plaza Homes, LLC, 55AD3d 692, 693 [2008]), or are without merit. Mastro, J.P., Dillon, Leventhal and Chambers,JJ., concur.