| McKiernan v Vaccaro |
| 2019 NY Slip Op 00267 [168 AD3d 827] |
| January 16, 2019 |
| Appellate Division, Second Department |
[*1]
| Peter G. McKiernan, Appellant, v Joseph Vaccaro,Also Known as Joseph S. Vaccaro, et al., Defendants, and Ernest Mancuso, Jr.,Respondent. |
Peter G. McKiernan, White Plains, NY, appellant pro se.
Devitt Spellman Barrett, LLP, Smithtown, NY (John M. Denby of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals fromtwo orders of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered May 9,2017, and August 24, 2017, respectively. The order entered May 9, 2017, insofar as appealedfrom, granted the motion of the defendant Ernest Mancuso, Jr., to vacate the note of issue andthereupon provided that the defendant Ernest Mancuso, Jr., could conduct certain discovery. Theorder entered August 24, 2017, granted the motion of the defendant Ernest Mancuso, Jr., forsummary judgment dismissing the complaint insofar as asserted against him, and denied theplaintiff's cross motion pursuant to CPLR 3212 (g) for an order specifying facts not indispute.
Ordered that the order entered May 9, 2017, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order entered August 24, 2017, is modified, on the law, by deleting theprovision thereof granting that branch of the motion of the defendant Ernest Mancuso, Jr., whichwas for summary judgment dismissing the cause of action alleging aiding and abetting an assaultand battery insofar as asserted against him, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order entered August 24, 2017, is affirmed, withoutcosts or disbursements.
On January 18, 2013, the plaintiff allegedly was injured during a "road rage" incident thatresulted in a physical altercation with the defendant Joseph Vaccaro. Vaccaro was a front-seatpassenger in a vehicle driven by his grandfather, the defendant Ernest Mancuso, Jr. While theplaintiff and Mancuso differ in their accounts as to what led up to the physical altercation, it isundisputed that Vaccaro exited Mancuso's vehicle and struck the plaintiff in the face.
Thereafter, the plaintiff, proceeding pro se, commenced this action against, among others,Vaccaro and Mancuso, inter alia, to recover damages for personal injuries. With respect toMancuso, the plaintiff asserted causes of action alleging, inter alia, negligence and aiding andabetting an assault and battery.
In July 2016, the plaintiff filed a note of issue along with an affidavit explaining thatdiscovery remained outstanding, including the parties' depositions and an independent medicalexamination of the plaintiff. Thereafter, Mancuso moved to vacate the note of issue due to theoutstanding discovery issues. The plaintiff opposed Mancuso's motion, arguing that the motionshould be denied on the grounds that the affirmation of good faith submitted by Mancuso'scounsel was insufficient and Mancuso did not comply with prior discovery orders by, inter alia,failing to provide an authorization to obtain his auto insurance carrier's no fault file or all copiesof his primary, contributing, and excess insurance agreements, except for a copy of hishomeowner's policy. The plaintiff then cross-moved to compel Mancuso to provide outstandingdiscovery.
While Mancuso's motion to vacate the note of issue and the plaintiff's cross motion tocompel discovery were pending, Mancuso moved for summary judgment dismissing thecomplaint insofar as asserted against him. The plaintiff cross-moved pursuant to CPLR 3212 (g)for an order specifying facts not in dispute.
In an order entered May 9, 2017, the Supreme Court granted the Mancuso's motion to vacatethe note of issue and thereupon set forth, inter alia, dates by which the parties' depositions and anindependent medical examination of the plaintiff were to be conducted. The court also grantedthe plaintiff's cross motion to compel discovery to the extent of directing Mancuso to disclose allinsurance policies that might potentially provide coverage to him for the incident, provide anauthorization for his auto insurance carrier's no fault file, and respond to the plaintiff's demandfor a supplemental bill of particulars as to Mancuso's affirmative defenses.
In an order entered August 24, 2017, the Supreme Court granted Mancuso's motion forsummary judgment dismissing the complaint insofar as asserted against him, and denied theplaintiff's cross motion for an order pursuant to CPLR 3212 (g) due to the plaintiff's failure to filesupporting papers with his cross motion. The plaintiff appeals from both orders.
"Pursuant to Uniform Rules for Trial Courts, a note of issue must be accompanied by acertificate of readiness, which must state that there are no outstanding requests for discovery andthe case is ready for trial" (Slovney vNasso, 153 AD3d 962, 962 [2017]; see 22 NYCRR 202.21 [a], [b]; Furrukh v Forest Hills Hosp., 107AD3d 668, 669 [2013]). Here, the plaintiff's certificate of readiness stated that significantdiscovery remained outstanding when the note of issue and certificate of readiness were filed.Since the certificate of readiness failed to materially comply with the requirements of 22 NYCRR202.21, the filing of the note of issue was a nullity (see Slovney v Nasso, 153 AD3d at962; Furrukh v Forest Hills Hosp., 107 AD3d at 669). Since the note of issue was anullity, the plaintiff's argument that the Supreme Court erred in permitting Mancuso to continuewith discovery is without merit. Moreover, the plaintiff's contention that counsel's affirmation ofgood faith in support of Mancuso's motion to vacate the note of issue was insufficient is withoutmerit (see Suarez v Shapiro FamilyRealty Assoc., LLC, 149 AD3d 526, 527 [2017]). Accordingly, we agree with the court'sdetermination to grant Mancuso's motion to vacate the note of issue and to permit Mancuso toconduct certain discovery.
However, the Supreme Court should not have granted Mancuso's motion for summaryjudgment dismissing the complaint insofar as asserted against him in its entirety. With respect toa cause of action alleging common-law negligence, "[a] defendant generally has no duty tocontrol the conduct of third persons so as to prevent them from harming others, even where as apractical matter defendant can exercise such control" (D'Amico v Christie, 71 NY2d 76,88 [1987]; see Purdy v Public Adm'r of County of Westchester, 72 NY2d 1, 8 [1988]; Citera v County of Suffolk, 95 AD3d1255, 1258 [2012]). "However, certain relationships may give rise to such a duty, but thenonly when the defendant has the ability and authority to control the third persons' conduct"(Conboy v Mogeloff, 172 AD2d 912, 913 [1991]; see Arango v Vasquez, 89 AD3d 875, 876 [2011]).
Here, Mancuso established, prima facie, that he did not owe a duty to the plaintiff by virtueof the relationship Mancuso had with Vaccaro. The fact that Mancuso could have exercisedcontrol over Vaccaro, his college-aged grandson, did not create a duty to do so (see D'Amicov Christie, 71 NY2d at 89-90). In addition, the mere fact that Vaccaro was a passenger inMancuso's vehicle did not create a duty on the part of Mancuso to control Vaccaro's conduct(see Gaige v Kepler, 303 AD2d 626, 627 [2003]). In opposition, the plaintiff failed toraise a triable issue of fact (see Donnellyv Elling, 85 AD3d 847, 848 [2011]; Gaige v Kepler, 303 AD2d at 627; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, we agree withthe Supreme Court's determination to grant those branches of Mancuso's motion which were forsummary judgment dismissing the causes of action grounded in negligence insofar as assertedagainst him.
To be liable for an assault under an aiding and abetting theory, a defendant must havecommitted some overt act, either by words or conduct, in furtherance of the assault (seeOffenhartz v Cohen, 168 AD2d 268, 268 [1990]). Here, Mancuso established, prima facie,that he did not commit an overt act in furtherance of Vaccaro's assault on the plaintiff (seeGaige v Kepler, 303 AD2d at 627-628; Shea v Cornell Univ., 192 AD2d 857, 858[1993]). In opposition, however, the plaintiff raised a triable issue of fact as to whetherMancuso's actions preceding the assault constituted an overt act in furtherance of the assault (see Scollo v Nunez, 60 AD3d 840[2009]). Accordingly, the Supreme Court should have denied that branch of Mancuso's motionwhich was for summary judgment dismissing the cause of action alleging aiding and abetting anassault and battery insofar as asserted against him.
Further, we agree with the Supreme Court's determination to deny the plaintiff's cross motionpursuant to CPLR 3212 (g) for an order specifying facts not in dispute. Rivera, J.P., Austin,Duffy and Barros, JJ., concur.