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Russo v. Dement

Supreme Court, Suffolk County

October 1, 2018

Ronald C. Russo, CHRISTINA RUSSO, And KENNETH A. WEITSEN, Plaintiffs,
v.
Brian Dement, Defendant.

          Weitz Pascale Trial Counsel for Plaintiffs Russo

          Jacobson & Schwartz, LLP Attorneys for Defendant Dement

          HON. ROBERT F. QUINLAN, J.S.C.

         Upon the following papers read on the above orders to show cause by defendant, consolidated for the purpose of oral argument, for orders granting defendant reargument/renewal (Mot. Seq. # 007); to quash subpoenas (Mot. Seq. #008) and directing the deposition of defendant in Federal prison (Mot. Seq. #009); defendant's order to show cause dated (Mot. Seq. # 007) with affirmation of counsel, affidavit of defendant, and attached exhibits; defendant's second order to show cause dated (Mot. Seq. # 008) with affirmation of counsel and attached exhibits; defendant's order to show cause dated September 12, 2018 (Mot. Seq. # 009) with affirmation of counsel and attached exhibits; and plaintiff's omnibus opposition submitted September 25, 2018; and upon the oral argument of counsel had before the Court on September 26, 2018; it is, ORDERED that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's application to reargue and/or renew the orders of Justice W. Gerard Asher of this court dated January 14, 2016 and September 27, 2016 (Mot. Seq. # 007) is denied; and it is further

          ORDERED that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's application for an order authorizing the deposition of defendant by his counsel while in custody at the Metropolitan Detention Center, Brooklyn, New York (Mot. Seq. # 009) is denied; and it is further

         ORDERED that for the reasons set forth in the decision of the court placed on the record after oral argument on September 26, 2018, and as more fully set forth below, defendant's motion to quash plaintiff's subpoena directed to defendant's examining physician is denied, and as plaintiff has withdrawn his request to subpoena physicians who examined plaintiff for plaintiff's Worker's Compensation carrier, that portion of defendant's motion is rendered moot (Mot. Seq. #008); and it further

         ORDERED that the action is set for trial on October 4, 2018, as jury selection, under the supervision of this court, was completed on September 25, 2018.

         This is an action by plaintiffs' Ronald C. Russo and Christina Russo ("plaintiffs") to recover damages from defendant Brian Dement ("defendant") for physical injuries caused to plaintiff Ronald C. Russo ("plaintiff ") on November 9, 2013 as a result of an incident that occurred at a premises located on Veteran's Memorial Highway, Commack, Suffolk County, New York. Plaintiffs commenced the action by filing a summons and complaint with the Suffolk County Clerk on December 23, 2013. Defendant, through his counsel, served an answer dated January 29, 2014 denying the allegations of the complaint and raising five affirmative defenses.

         As a consequence of the incident, defendant was arrested, resulting in the filing of Superior Court Information # 570-15 before the Hon. Richard J. Ambro of this court on March 13, 2015, at which time defendant pled guilty to Assault in the Second Degree (PL § 120.05 [4]), admitting that he recklessly caused serious physical injury to plaintiff by means of a deadly weapon or dangerous instrument, a knife. During his guilty plea defendant acknowledged that he waived his rights to trial on the issues, to testify on his own behalf, to call witnesses or submit evidence on his behalf and that he waived his right to appeal. Defendant was subsequently sentenced to a limited period of incarceration and five years probation. Defendant never appealed his conviction, moved to vacate his conviction, nor made any other post sentence motion addressing the conviction.

         Subsequent to entry of defendant's guilty plea, plaintiffs moved for summary judgment in this action arguing that defendant's conduct was sole proximate cause of plaintiff's injuries, submitting in support of the motion a certificate of defendant's conviction and a copy of the transcript of defendant's guilty plea. Defendant did not oppose the motion. By order dated January 14, 2016, Justice W. Gerard Asher granted plaintiff's motion.

         After the entry of the order, a deposition of plaintiff was scheduled for September 20, 2016. Defendant's counsel argued that he had a right to examine plaintiff about the facts surrounding the incident, plaintiff's counsel refused to allow such questioning, and objected stating that the order of January 14, 2016 had resolved all issues of liability between the parties. The deposition was adjourned as defendant's counsel wished to have his claim resolved by Justice Asher at a conference scheduled for September 27, 2016. (Defendant has submitted a partial transcript of this colloquy in support of his motion to reargue and renew [Mot. Seq. #007]). On September 27, 2016, Justice Asher issued a written order that stated in pertinent part: "The issue of liability on the parts of plaintiff's Russo & Weitsen has been previously determined pursuant to the decision and order dated January 14, 2016, when plaintiffs' unopposed motion for partial summary judgment on the issue of liability has been granted. Therefore, no issues exist as to comparative negligence or culpable conduct of plaintiffs." Defendant was not allowed to inquire concerning the facts of the incident at the subsequent deposition of plaintiff. A note of issue was filed, co-plaintiff Weitsen settled his action, this action was placed on the court's trial calendar and appeared before the Calendar Control Part ("CCP") Justice for conferences, jury selection was commenced and the jury disbanded, and on September 17, 2018 the action was sent to this part by the CCP Justice for this court to supervise jury selection and for trial. After conference the court adjourned jury selection to September 24, 2018, as defendant's counsel had indicated that he was filing the orders to show cause to reargue/renew (Mot. Seq. #007) and to quash subpoenas (Mot. Seq. #008).

         Defendant never appealed the orders of January 14, 2016 and September 27, 2016, but now brings this motion (Mot. Seq. # 007) to reargue and renew those orders.

         DEFAULT MUST BE ...


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