Opinion
287 Index No. 24578/15E Case No. 2022-05714
05-18-2023
In the Matter of Geraldine DUVAL etc., Plaintiff–Appellant, v. CENTERLIGHT HEALTH SYSTEM, INC., et al., Defendants–Respondents.
Rosenbaum & Rosenbaum, P.C., New York (Matthew T. Gammons of counsel), for appellant. Sheeley LLP, New York (Jon D. Lichtenstein of counsel), for Centerlight Health System, Inc., and Center for Nursing and Rehabilitation Adult Healthcare Program, respondents. Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for Keser Nursing and Rehabilitation Center, Inc., and Bedford Center for Nursing and Rehabilitation, respondents.
Rosenbaum & Rosenbaum, P.C., New York (Matthew T. Gammons of counsel), for appellant.
Sheeley LLP, New York (Jon D. Lichtenstein of counsel), for Centerlight Health System, Inc., and Center for Nursing and Rehabilitation Adult Healthcare Program, respondents.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for Keser Nursing and Rehabilitation Center, Inc., and Bedford Center for Nursing and Rehabilitation, respondents.
Manzanet–Daniels, J.P., Kapnick, Gonza´lez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered May 31, 2022, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to renew defendants’ prior motions to dismiss the complaint pursuant to CPLR 1021, or to vacate an order, same court and Justice, entered April 3, 2018, dismissing the complaint as against all defendants, without prejudice, and a judgment, same court and Justice, entered June 18, 2018, dismissing the complaint as against defendants Keser Nursing and Rehabilitation Center, Inc., and Bedford Center for Nursing and Rehabilitation (collectively, Keser), and to substitute Geraldine Duval, in her capacity as executrix of the Estate of Geralde Duval, as plaintiff, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying that branch of plaintiff's motion which was for leave to renew (see generally S.V.L. v. PBM, LLC, 191 A.D.3d 564, 565, 142 N.Y.S.3d 523 [1st Dept. 2021] ). Plaintiff offered neither new facts that were unavailable to her at the time that defendants’ motions to dismiss were granted or decided three years earlier, nor a reasonable justification for failing to present those facts in connection with those prior motions ( CPLR 2221[e][2]-[3] ; see Singh v. QLR Five LLC, 171 A.D.3d 614, 96 N.Y.S.3d 854 [1st Dept. 2019] ; Levy v. New York City Health & Hosps. Corp., 40 A.D.3d 359, 360, 836 N.Y.S.2d 123 [1st Dept. 2007], lv dismissed 9 N.Y.3d 1001, 849 N.Y.S.2d 28, 879 N.E.2d 168 [2007] ).
Plaintiff also was not entitled to vacatur of the court's prior order and judgment on the ground of excusable default ( CPLR 5015[a][1] ), since they were not entered on her default. Rather, her counsel appeared in court on the return date, participated in the argument and discussion thereof, and submitted papers in connection therewith, and nothing in the court's order or judgment indicate that the motions were granted on plaintiff's default (see Vaca v. Village View Hous. Corp., 170 A.D.3d 619, 620, 97 N.Y.S.3d 81 [1st Dept. 2019] ). In any event, plaintiff did not move within the statutorily prescribed one-year time limit and failed to present "a valid excuse for [her] failure to do so ..." ( Carter v. Daimler Trust, 177 A.D.3d 541, 541, 110 N.Y.S.3d 841 [1st Dept. 2019] ). As we noted in a prior, related appeal, plaintiff charted her own course in this matter, with the resulting consequences (see Duval v. CenterLight Health Sys., Inc., 189 A.D.3d 576, 577, 134 N.Y.S.3d 180 [1st Dept. 2020] ).
We have considered plaintiff's remaining contentions and find them unavailing.