Gaviola v Lamarre

2024 NY Slip Op 30803(U)

March 13, 2024

Supreme Court, New York County

Docket Number: Index No. 158138/2023

Judge: Hasa A. Kingo

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.158138/2023 GAVIOLA, GIRLIE ET AL vs. LAMARRE, MICHAEL ET AL

Motion No. 001 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10

were read on this motion to/for DISMISSAL

.

Defendant s MICHAEL LAMARRE ( “Lamarre ”) and PAUL KASHMAN ( “Kashman) ( collectively “defendants ”) move, unopposed, f or an order : (1 ) Pu r suant to CPLR §3211(a)(8), CPLR § 306

- b , and CPLR § 214(5), dismissing p laintiff’s c omplaint as asserted against defendant s ; (2) P ur s uant to CPLR § 3211(a)(5) dismissing p laintiff’s causes of action sounding in intentional tort against defendant s as such causes of a ction are time

- barred ; and (3)

Pursua nt to CPLR § 3211(a)(7) dismissing p laintiff’s c omplaint as asserted against defendant s in its entirety, as p laintiff’s Complaint fails to assert any viable cause of action as against defend ants.

CPLR § 3211(a)(8) states that a party may move for dismissal on the ground that “the court has no jurisdiction of the person of the defendant.” On a motion brought under CPLR § 3211(a)(8), the plaintiff bears the “burden of presenting s ufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction” ( Coast to Coast Energy, Inc. v. Gasarch , 149 A D 3d 485, 486 [1st Dep t 2017]). Pur s ua nt to CPLR § 306

- b , where 120 days has elapsed since the filing of the original summons and complaint without effective service of process , and w here the running

of a three

- year statute of limitations of CPLR § 214(5) has not been tolled and has la psed

, dismissal may be wa rranted.

Although CPLR § 306

- b calls for process to be served “within one hundred twenty days after the commencement of the action or proceeding,” the “120

- day service provision of CPLR § 306

- b can be extended by a court, upon motion, ‘upon good cause shown or in t he interest of justice’ ( see CPLR § 306

- b)” ( Bumpus v. New York City Transit Authority , 66 AD3d 26, 31 [2d Dept 2009]). The c ourt may also extend the 120

- day service provision sua sponte upon such a showing ( see Gurevitch v. Goodman , 269 AD2d 355, 356 [2d Dept 2000] ; see also Practice Commentary, McKinney's Cons Law of NY, 2018 Electronic Update, CPLR § 306

- b).



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M

Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 158138/2023

MOTION DATE 12/22/2023

MOTION SEQ. NO. 001

DECISION + ORDER ON

MOTION GIRLIE GAVIOLA, GIRLIE GAVIOLA

Plaintiff,

- v

-

MICHAEL LAMARRE, PAUL KASHMAN,

Defendant.

------------------------------------------------------------------- -- ------------ X INDEX NO. 158138/2023

NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/13/2024

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### [* 1]158138/2023 GAVIOLA, GIRLIE ET AL vs. LAMARRE, MICHAEL ET AL

Motion No. 001 Page 2 of 4 Nonetheless, “Good cause” and “interest of justice” a re two separate and independent statutory standards ( see Leader v. Maroney, Ponzini & Spencer , 97 NY2d 95

, 104 [ 2001] ). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. Good cau se will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service

.

If good cause for an extension is not established, courts must consider the ‘interest of justice’ standard of CPLR 306

- b. The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors ( see Leader v. Maroney, Ponzin i & Spencer , 97 NY2d at 105, supra )

. The interest of justice standard is broader than the good cause standard ( see Mead v. Singleman , 24 AD3d 1142, 1144 [ 3d Dept 2005] ), as its factors also include the expiration

of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant ( Bumpus v. New York City Transit Authority

, 66 AD3d at 31

- 32

, supra ).

H e r e
, a s sufficient l y attested to by d efendants, p laintiff has not effectuated service of the

s ummons and c o mplaint in this matter on either Lamarre, or Kashman. I n d e e d

, p laintiff has not even attempted to e f

f e c t u a t e s e r v i c e . Plaintiff has not filed any a ffidavits of s ervice on this matter’s NYSCEF docket within the timeframe required by the CPLR as to d e f e n d a n t s

. Moreover, as attested to by d e f

e n d a n t s
, p laintiff has not served either Lamarre, or Kashman, personally or by mail, with the s ummons and c omplaint in this matter. Consequently, p laintiff’s Complaint must be

dismissed as p laintiff has failed to comply with CPLR § 306

- b

.

Ne xt, “ [o] n a motion to dismiss a cause of action pursuant to CPLR §3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie , that the time in which to sue has expired” ( Benn v Benn , 82 AD3d 548, 548 [1st Dept 2011 ][ quoting Island ADC, Inc. v Baldassano Architectural Group, P.C ., 49 AD3d 815, 816 [2d Dept 2008]); see also Gravel v Cic ola , 297 AD2d 620 [ 2d Dept 2002 ] ). “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable, or whether the action was actually commenced within the period propounded by the defendant” ( QK Healthcare, Inc. v InSource, Inc. , 108 AD3d 56, 65 [ 2d Dept 2013 ] ; see MTGLQ Investor, LP v Wozencraft , 172 AD3d 644 [ 1st Dept 2019 ] ; Epiphany Community Nursery School v Levey , 171 AD3d 1 [ 1st Dept 2019 ] ; J. A. Lee Elec., Inc. v City of

New York , 119 AD3d 6 52 [ 2d Dept 2014 ] )

. A p laintiff's submissions in response to the motion “must be given their most favorable intendment” ( Benn

, 82 AD3d at 548, supra quoting Arrington

v New York Times Co ., 55 NY2d 433, 442 [1982]).

Here, defendant s have sufficient ly show n that p laintiff’s causes of action sounding in

intentional tort must be dismissed as time

- barred by the s tatute of l imitations. To be su re, t he alleged incident giving rise to the instant matter occurred on August 27, 2020. The time

- period within which to timely commence a c ause of action sounding in intentional tort is one year, and thus, the t ime to commence causes of action for Defamation; Injurious Falsehood; Abuse of

Process ; a n d Prima Facie Tort expired on August 27, 2021. Thus, these causes of action must be

dismissed. As pla in tif

f has pro ffered no opposition to dismissal , and has failed to assert application INDEX NO. 158138/2023

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### [* 2]158138/2023 GAVIOLA, GIRLIE ET AL vs. LAMARRE, MICHAEL ET AL

Motion No. 001 Page 3 of 4 of any toll ing provisions to rebut defendants ’ assertions , the aforementioned causes of action are

dismissed.

Finally, o n a motion to dismiss for failure to state a cause of action under CPLR §3211 (a)(7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. ( Leon v Martinez

, 84 NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group , LLC, 25 NY3d 759, 764 [2015].) Ordinarily, the court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, the court's only function is to de termine whether the facts as alleged fit within a cognizable legal theory ( JF Capital Advisors , 25 NY3d at 764, supra ). However, where the complaint consists of bare legal conclusions with no factual specificity ( Godfrey v Spano , 13 NY3d 358, 373 [2009]) o r where the statements in a pleading are not sufficiently particular to give the court and parties notice of the transactions and/or occurrences intended to be proven (CPLR §3013; Mid

- Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC , 31 NY3d 1090, 1091 [2018]), the motion to dismiss should be granted. Indeed, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” ( Garber v Board of Trustees o f State Univ. of NY

, 38 AD3d 833, 834 [2d Dept 2007], quoting Maas v Cornell Univ., 94 NY2d 87, 91 [1999]). CPLR §2013, states that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of
the transactions, occur rences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Thus, conclusory allegations will not suffice ( see DiMauro v Metropolitan Suburban Bus Auth ., 105 AD2d 236, 239 [2d Dept 1984]; Fowler v American Lawyer Media , 306 AD2d 113, 113 [1st Dept 2003]; Sheriff v Murray , 33 AD3d 688 [2d Dept 2006]). When the allegations in a complaint are vague or conclusory, dismissal for failure to state a cause of action is warranted ( see Schuckm an Realty v Marine Midland Bank,

N.A ., 244 AD2d 400, 401 [2d Dept 1997]; O'Riordan v Suffolk Ch., Local No. 852, Civ. Serv. Empls. Assn. , 95 AD2d 800, 800 [2d Dept 1983]).

Here, even granting p laintiff all favorab le inferences, there is no factual basis upon which

p laintiff may allege negligent misrepresentation; “words negligently spoken”; failure to warn and protect; injury on premises; “landlord’s servant causing injury”; negligent infliction of emotional

dis tress; aiding and abetting tortious conduct; trespass to chattels; conversion; and survivorship

. L i k e w i s e
, p laintiff’s cause of action for loss of consortium must be dismissed ( s e e De Angelis v.

Lutheran Medical Center , 84 A.D.2d 17, 20

- 21 [ 2 d Dept 1981 ] [ w h e r e i n A p p e l l a t e D i v i s i o n
, S e c o n d D e p a r t m e n t

, affirmed d i s m i s s a l o f c a u s e o f a c t i o n o n b e h a l f o f a c h i l d f o r t h e l o s s o f

p a r e n t a l consortium b y r e a s o n i n g t h a t while the r eal and significant harm suffered by children of parents who are physically injured cannot be denied, not every loss can be made compensable, and the courts must draw the line where liability terminates ] )

.

Accordingly, it is hereby

OR DERED that the instant motio n is granted , u nopposed, and p laintiff’s c omplaint is dismissed in its entirety as asserted ag ainst def endant s Kashman and Lamarre ; a nd it is further

ORD ERED th at the Clerk of the Court is directed to en ter judgment dismissi ng this matter as against defendants Kashman and Lamarre in accordance with this court ’s decision and order. INDEX NO. 158138/2023

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Motion No. 001 Page 4 of 4 This constitutes the decision and or der of the court.

3/13/2024

DATE HASA A. KINGO, J.S.C.

CHECK ONE: X CASE DISPOSED NON

- FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 158138/2023

NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/13/2024

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