ADDITIONAL CASES New York City Transit Authority, Plaintiff v. Naeem Davis, Defendant; Third-Party 595681/2016 The following e-filed documents, listed by NYSCEF document number (Motion 011) 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION AND CROSS-MOTION This wrongful death matter arises out of the December 3, 2012, incident in which plaintiff’s decedent was pushed by third-party defendant Naeem Davis (“Davis”) during an altercation on the platform of the southbound Q train at the 49th Street station in Manhattan, resulting in the decedent’s falling onto the subway tracks and being killed by an oncoming train. Davis was arrested and charged in the decedent’s death, remained incarcerated until his trial, and ultimately was acquitted of all charges and released from jail on July 17, 2017. Plaintiff commenced this action against defendant New York City Transit Authority (“NYCTA”) in March 2013, issue was joined, and NYCTA commenced the third-party action against Davis in September 2016, Davis did not answer or appear in the third-party action, resulting in NYCTA’s obtaining a default judgment against Davis by order of this court dated April 12, 2018, The parties herein were recently before this court when Davis moved to vacate the default judgment and NYCTA cross-moved to vacate the note of issue, compel discovery and enlarge its time to move for summary judgment of any counterclaims, or alternatively to stay trial pending completion of discovery and any motion practice. By decision and order of this court dated August 5, 2020, the default judgment against Davis was vacated and NYCTA’s cross-motion was granted to the extent that there was to be expedited discovery in the third-party action and an extension of time for NYCTA to move to dismiss counterclaims, if any. In the motions now before the court, Davis moves pursuant to CPLR 3211(a)(7) and 3211(c) to dismiss the Third-Party Complaint. NYCTA cross-moves pursuant to CPLR 3107 and §3215 for an order compelling Davis’ deposition pursuant to notice, granting default judgment to NYCTA against Davis for his failure to appear and answer the Third-Party complaint, and for inquest against Davis. For the reasons set forth below, the motion and cross-motion are both denied, and the parties are ordered to comply with the directives of the August 5, 2020, decision which ordered expedited discovery in the third-party action and an extension of time for NYCTA to move to dismiss counterclaims, if any. Motion to Dismiss Initially, the court notes that the instant motion to dismiss is timely. The August 5, 2020, order’s directive that Davis serve an answer within 30 days of entry of said order did not preclude him from moving to correct the pleadings pursuant to CPLR 3024(b), and the court granted Davis’ request to extend the time to so move to September 1, 2020. Thereafter, NYCTA agreed to withdraw the paragraph of the Third-Party Complaint that was the subject of Davis’ motion, and Davis formally withdrew his motion by letter to the court dated September 22, 2020. This court then issued a short form order dated September 24, 2020, and uploaded to NYSCEF on September 29, 2020, which formally closed out the motion. Pursuant to CPLR 3024(c), Davis had ten days from the disposition of his motion to serve a responsive pleading (or otherwise move pursuant to CPLR 3211). Thus, whether the 10-day period began to run on September 22, 24 or 29, the instant motion — filed and served on October 2, 2020 — is timely. With respect to the substance of the dismissal motion, it is well established that “[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law [cite omitted].” Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). The Third-Party Complaint alleges in sum that Davis “intentionally, knowingly, and recklessly battered and assaulted and pushed the decedent,” thereby causing his death, and that plaintiff’s damages were proximately caused by Davis’ “intentional, knowing and/or reckless act of pushing the decedent….” (Affirmation in Opposition to Third-Party Defendant’s Motion to Dismiss and in Support of the Instant Cross-Motion, Exhibit B,
