A case with multiple court reversals on reargument, starts and stops in the litigation itself ends, for the moment in a tolling order. Tavares v Calcagno & Assoc., LLC 2022 NY Slip Op 30482(U) February 16, 2022 Supreme Court, New York County Docket Number: Index No. 156499/2021 Judge: David Benjamin Cohen took place after the underlying Labor Law construction injury case was dismissed twice only to be reinstated by the same judge twice.
“In November 2018, “Toll Brothers, Inc. s/h/a Toll Brothers, Inc. a/k/a Toll GC LLC a/k/a Toll GC II, LLC” and Castanon moved to dismiss the underlying action pursuant to CPLR 306-
b, asserting that they had not been served within 120 days after the complaint was filed. Doc. 8 filed under Ind. No. 159625/16. By order entered March 8, 2019, this Court (Nock, J.) granted the motion and dismissed the complaint in the underlying action as against Toll Brothers, Inc. and Castanon. Doc. 27 filed under Ind. No. 159625/16. In so holding, Justice Nock held that “[t]here is no dispute that plaintiffs failed to serve defendants within 120 days as required by CPLR 306-b, or that plaintiffs even attempted to serve the defendants within that time.” Id.
Plaintiffs thereafter moved to renew and reargue the motion by Toll Brothers, Inc. and Castanon in the underlying matter. Docs. 29 and 30 filed under Ind. No. 159625/16. By
decision and order entered January 14, 2020, Justice Nock granted that branch of the motion seeking reargument and, upon reargument, reinstated the claims against Toll Brothers, Inc. and Castanon, reasoning that plaintiffs had “direct[ ed] the court’s attention to portions of their initial motion papers, submitted in opposition to defendants’ motion to dismiss [in the underlying matter], that detail[ ed] serious, severe, and persisting personal and professional problems that plagued plaintiffs’ counsel subsequent to the commencement of [the underlying] action in 2016, causing said counsel to be distracted from the service deadlines applicable in this action.” Doc 47 filed under Ind. No. 159625/16. Justice Nock also noted that, although service on Toll Brothers, Inc. and Castanon had been untimely, it was otherwise proper, and that it is the policy of the courts of this State to determine matters on the merits. Id. No appeal was taken from Justice Nock’s order.
In July 2020, Civetta moved for summary judgment (mot. seq. 003) in the underlying action. Docs. 56-63 filed under Ind. No. 159625/16. In September 2020, Toll Brothers, Inc.
cross-moved for summary judgment (mot. seq. 003) on the ground that it was not the owner of, or the general contractor at, the site of plaintiff’s accident. Docs. 66-75 filed under Ind. No. 159625/16. Although Toll Brothers, Inc. conceded that it was served with the summons and complaint in the underlying action, it maintained that it, Toll GC LLC, and Toll GC II LLC were three distinct entities and that the latter two were not served with process. Doc. 67 filed under Ind. No. 159625/16, at pars. 6-7.
The claims against Civetta in the underlying action were discontinued on October 30, 2020, thereby resolving its motion for summary judgment (mot. seq. 003). Doc. 77 filed under
Ind. No. 159625/16. However, the cross motion by Toll Brothers, Inc. (mot. seq. 003) remained pending.
By order dated February 12, 2021, this Court (Nock, J.) granted the motion by Toll Brothers, Inc. for summary judgment dismissing the complaint “on the ground of no opposition”.
Doc. 95 filed under Ind. No. 159625/16. However, by order filed July 29, 2021, Justice Nock vacated his February 12, 2021 order, stating that he had erred in granting the motion without
opposition since he “had granted an adjournment to allow opposition.” Id. Justice Nock also directed that oral argument of the motion was to be conducted on March 9, 2021, on which date it was held. Docs. 95 and 97 filed under Ind. No. 159625/16. At oral argument, counsel for Toll Brothers, Inc. argued that his client “had absolutely no connection to the project” during which plaintiff was injured. Doc. 97 filed under Ind. No. 159625/16. Plaintiffs’ counsel sought leave to amend the complaint to name Toll GC LLC and Toll GC II LLC as defendants, maintaining that they were subsidiaries of Toll Brothers, Inc. and that the claims against them related back to those asserted against Toll Brothers, Inc. for statute oflimitations purposes. Doc. 97 filed under Ind. No. 159625/16 at 8. However, plaintiffs’ counsel has not made a formal motion to amend the complaint. To date, no decision has been rendered regarding Toll Brothers, Inc.’s cross motion for summary judgment in the underlying action.
In July 2021, plaintiffs commenced the captioned action against defendants, alleging that they committed legal malpractice by, inter alia, failing to timely serve Toll Brothers, Inc. and
Castanon in the underlying action pursuant to CPLR 306-b. Doc. 1. 2 Plaintiffs further alleged that defendants failed to commence claims against Toll GC, LLC and Toll GC II, LLC in the
underlying action within the applicable statute of limitations period. Doc. 1 at pars. 84-85. ” “Additionally, “to the extent that the plaintiff[s’] action may be premature because, while
the underlying action is pending, it cannot be determined whether the defendant[s’] alleged legal malpractice caused the plaintiff[ s] to sustain damages”, this Court, in its discretion, hereby stays this action pending a decision on Toll Brothers, Inc.’s motion for summary judgment in the underlying action (Spitzer v Newman, 163 AD3d 1026, 1028 [2d Dept 2018] [ citations omitted]). This is because that decision may shed light on whether defendants should have named Toll GC, LLC and/or Toll GC II, LLC as direct defendants in the underlying matter. “