Opinion
2020-09056 Index No. 511435/17
12-13-2023
Shawn Fulcher, respondent, v. Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., appellant.
The Wilson Law Firm LLC, Brooklyn, NY (Earl Antonio Wilson of counsel), for appellant.
The Wilson Law Firm LLC, Brooklyn, NY (Earl Antonio Wilson of counsel), for appellant.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated October 1, 2020. The order, insofar as appealed from, denied, without prejudice, those branches of the defendant's motion which were for leave to renew and reargue that branch of its prior motion which was to extend the time to conduct an independent medical examination of the plaintiff, which had been denied in an order of the same court dated March 13, 2020, and denied that branch of the defendant's motion which was to strike the note of issue to allow the plaintiff to appear for an independent medical examination.
Motion by the plaintiff, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated November 12, 2021, that branch of the motion which is to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the branch of the motion which is to dismiss the appeal is granted to the extent that the appeal from so much of the order dated October 1, 2020, as denied, without prejudice, that branch of the defendant's motion which was for leave to reargue is dismissed, and that branch of the motion is otherwise denied; and it is further, ORDERED that the order dated October 1, 2020, is reversed insofar as reviewed, on the law and in the exercise of discretion, that branch of the defendant's motion which was for leave to renew that branch of its prior motion which was to extend the time to conduct an independent medical examination of the plaintiff is granted, upon renewal, so much of the order dated March 13, 2020, as denied that branch of the prior motion is vacated, and thereupon that branch of the prior motion is granted, and that branch of the defendant's motion which was to strike the note of issue to allow the plaintiff to appear for an independent medical examination is granted; and it is further, ORDERED that one bill of costs is awarded to the defendant.
The plaintiff allegedly sustained injuries when a brawl erupted at a party on the defendant's property. The plaintiff subsequently commenced this personal injury action, alleging that the defendant was negligent, inter alia, in failing to provide proper security and by serving alcohol to persons who were extremely inebriated. The defendant answered the complaint and denied the material allegations. Pursuant to a final pre-note of issue order, the plaintiff filed a note of issue and certificate of readiness, which stated that physical examinations had been completed, discovery proceedings were not completed, and the case was not ready for trial. Subsequently, after the plaintiff's deposition was held, the defendant moved, inter alia, to extend the time to conduct an independent medical examination (hereinafter IME) of the plaintiff. Prior to resolution of the defendant's motion, the plaintiff served a supplemental response to an earlier discovery demand made by the defendant, enclosing, inter alia, HIPAA-compliant authorizations to obtain records from the plaintiff's treating physician and dental provider, and the Workers' Compensation Board, as well as updated authorizations for hospital and medical records. Thereafter, the plaintiff submitted opposition to the defendant's motion. In an order dated March 13, 2020, the Supreme Court, inter alia, denied that branch of the defendant's motion with was to extend the time to conduct an IME of the plaintiff on the ground that the defendant had not shown good cause and failed to include a good-faith affirmation (see 22 NYCRR 202.7[a]).
The defendant subsequently moved, inter alia, for leave to renew and reargue that branch of its prior motion which was to extend the time to conduct an IME of the plaintiff and to strike the note of issue to allow the plaintiff to appear for an IME. In support of its motion, the defendant submitted the plaintiff's supplemental response and argued, in relevant part, that the authorizations withheld by the plaintiff prevented the defense from moving forward with an IME. In an order dated October 1, 2020, the Supreme Court, inter alia, denied, without prejudice, those branches of the defendant's motion which were for leave to renew and reargue for failure to comply with CPLR 2221 and 2214(c), and denied that branch of the motion which was to strike the note of issue to allow the plaintiff to appear for an IME. The defendant appeals.
"A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court" (Kugler v Kugler, 174 A.D.3d 876, 877 [internal quotation marks omitted]; see Mi Ja Lee v Glicksman, 14 A.D.3d 669, 670). A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (id. § 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. § 2221[e][3]). "A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought" (id. § 2221[f]).
22 NYCRR 202.21(e) provides that "[w]ithin 20 days after service of a note of issue and certificate of readiness, any party to the action... may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.... After such period,... no such motion shall be allowed except for good cause shown. At any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect."
Contrary to the defendant's contention, there is nothing to suggest that the Supreme Court granted reargument and, upon reargument, adhered to the prior determination denying that branch of the defendant's prior motion which was to extend the time to conduct an IME of the plaintiff. Accordingly, the appeal from so much of the order dated October 1, 2020, as denied, without prejudice, that branch of the defendant's motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see HSBC Bank USA, N.A. v Sodhi, 167 A.D.3d 853).
The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant's motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination (see CPLR 2221[e]; see also 22 NYCRR 202.21[e]). Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff's prior opposition, were sufficient to determine the motion (see CPLR 2214[c]; Matter of Nazor v New York City Loft Bd., 179 A.D.3d 609, 611; Nationstar Mtge., LLC v Bailey, 175 A.D.3d 697, 698; cf. Cripps v Dibisceglie, 172 A.D.3d 1305). Accordingly, upon renewal, the court should have granted that branch of the defendant's prior motion which was to extend the time to conduct an IME of the plaintiff, and the court should have granted that branch of the defendant's motion which was to strike the note of issue to allow the plaintiff to appear for an IME (see Clarke v Clarke, 113 A.D.3d 646; Encarnacion v Monier, 81 A.D.3d 875).
DUFFY, J.P., CHAMBERS, WOOTEN and DOWLING, JJ., concur.