Tommy Quach v. C&A Jerome Realty, LLC, et al.
Attorneys and Parties
Brief Summary
Premises liability (slip-and-fall on snow/ice) and the binding effect of a plaintiff’s sworn statements in a separate action on summary judgment; timeliness of summary judgment under CPLR 3212(a).
Supreme Court, Bronx County denied defendants’ cross-motion for summary judgment dismissing the complaint.
The denial of defendants’ cross-motion; the Appellate Division reversed and granted summary judgment to defendants, directing entry of judgment.
Plaintiff obtained a default judgment in a separate action against Wok Wok based on sworn statements that the accident occurred adjacent to Wok Wok, not the Cutie Beauty premises. He is bound by those statements, defeating his claim here. Defendants’ motion was timely under CPLR 3212(a) [120-day deadline after the note of issue is filed for making a summary judgment motion] and complied with CPLR 2214(b) [notice and timing requirements for motion papers].
Background
Plaintiff alleged he slipped and fell on January 8, 2018, on snow and ice on the sidewalk next to Cutie Beauty Supply Corp., at premises owned by C&A Jerome Realty, LLC. In deposition, he said he fell toward the side of the beauty parlor and had walked past his pizza-shop employer, Wok Wok Chinese restaurant, and a barbershop without noticing snow or ice, and saw no water coming from Wok Wok. While this case was pending, he filed a separate action against Wok Wok Corp. alleging the same accident occurred adjacent to Wok Wok, not Cutie Beauty, and swore to that location in a verified complaint, an attorney affirmation, and his own affidavit. The court in that action granted a default judgment based on those submissions (see CPLR 3215[f] [requires proof of the facts constituting the claim, the default, and the amount due to support a default judgment]).
Lower Court Decision
Supreme Court, Bronx County denied defendants’ cross-motion for summary judgment dismissing the complaint.
Appellate Division Reversal
The Appellate Division unanimously reversed, granted defendants’ cross-motion for summary judgment, and directed the Clerk to enter judgment. Defendants established a prima facie entitlement by submitting plaintiff’s sworn filings from the Wok Wok action, in which he obtained a judgment premised on the accident occurring at a different location. Bound by those sworn statements, plaintiff’s deposition testimony could not create a triable issue of fact. The motion was timely under CPLR 3212(a) [120-day deadline after the note of issue is filed for making a summary judgment motion] and complied with CPLR 2214(b) [notice and timing requirements for motion papers], consistent with Brill v City of New York.
Legal Significance
Affirms that a plaintiff’s sworn statements used to obtain a default judgment in a parallel action can bind the plaintiff and preclude conflicting factual positions in related litigation, supporting summary judgment for defendants. Also underscores strict adherence to the CPLR 3212(a) timeliness rule and motion service requirements under CPLR 2214(b).
A plaintiff who secures a default judgment based on sworn assertions about where an accident occurred cannot take an inconsistent position in another suit over the same incident; defendants may obtain summary judgment by relying on those sworn admissions, provided their motion is timely under CPLR 3212(a) and properly noticed under CPLR 2214(b).