Opinion
2004-1468 QC.
Decided March 7, 2006.
Consolidated appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered June 3, 2004, and two orders of the same court, entered January 11, 2005. The order entered June 3, 2004 granted defendants' motion for preclusion and for a judgment on their counterclaim, and denied plaintiff's cross motion for summary judgment and for a protective order. The orders entered January 11, 2005 respectively denied plaintiff's motion for reargument and renewal of the order entered June 3, 2004, and denied plaintiff's motion to vacate the order entered June 3, 2004.
On the court's own motion, the order of this court dated March 8, 2005, which consolidated appeals No. 2003-1468 Q C and No. 2005-183 Q C under No. 2003-1468 Q C, is amended to reflect that appeals No. 2004-1468 Q C and 2005-183 Q C are consolidated under No. 2004-1468 Q C.
PRESENT: PESCE, P.J., WESTON PATTERSON and RIOS, JJ.
Order entered June 3, 2004 and order entered January 11, 2005, which denied plaintiff's motion to vacate the order entered June 3, 2004, affirmed without costs.
Appeal from so much of the order entered January 11, 2005 as denied plaintiff's motion for reargument dismissed.
Order entered January 11, 2005, insofar as it denied plaintiff's motion for renewal, affirmed without costs.
Plaintiff commenced the instant action to recover the sum of $25,000 for unpaid legal fees and defendants counterclaimed to recover the sum of $67,080 for, among other things, excessive legal fees which they had already paid to plaintiff. Plaintiff moved to dismiss defendants' counterclaims and affirmative defenses, and defendants cross-moved to compel plaintiff to provide a response to their discovery demands. By order dated January 22, 2003, the court dismissed all of defendants' counterclaims except for the aforementioned counterclaim for excessive legal fees and directed plaintiff to serve a response to defendants' discovery demands within 20 days of service of a copy of its order with notice of entry. Thereafter, the parties entered into a stipulation of settlement which was "so-ordered" by the court. Said stipulation provided that plaintiff was to provide a response to defendants' discovery demands by May 9, 2003 and in the event that plaintiff failed to do so, it would be precluded from introducing evidence supporting its causes of action and precluded from introducing evidence opposing defendants' remaining counterclaim and affirmative defenses. Thus, the "so-ordered" stipulation functioned as a conditional order of preclusion which would become absolute once plaintiff failed to comply with same ( see Nales v. Kader, 7 Misc 3d 138 [A], 2005 NY Slip Op 50862[U] [App Term, 2d 11th Jud Dists]; Coleman v. Thompson, 5 Misc 3d 136 [A], 2004 NY Slip Op 51543[U] [App Term, 2d 11th Jud Dists]).
On April 30, 2003, plaintiff moved by order to show cause to vacate the stipulation and said order was signed by the court on that same day and provided that "all actions on behalf of the defendants to enforce the purported stipulation of settlement executed April 9, 2003, be stayed pending the hearing and final determination of this motion." Once the court entered an order on May 30, 2003 denying plaintiff's motion to vacate the stipulation, the stay, by its own terms, fell ( see Tuska v. Jarvis, 61 Misc 224 [App Term, 1908]). As a result of plaintiff's failure to provide a response to defendants' discovery demands, defendants served a motion on July 23, 2003 seeking preclusion and, among other things, summary judgment. In light of the foregoing, the lower court's order entered June 3, 2004 which granted defendants' motion for preclusion and for a judgment on the counterclaim, and denied plaintiff's cross motion is affirmed. Additionally, since there were no grounds to vacate the order entered June 3, 2004, the order entered January 11, 2005, which denied plaintiff's motion to vacate the order entered June 3, 2004, is likewise affirmed.
Turning to the appeal from the order entered January 11, 2005, which denied plaintiff's motion for reargument and renewal, insofar as the lower court denied plaintiff's motion for reargument, the appeal therefrom must be dismissed since no appeal lies from an order denying reargument ( see Rivera v. Cambridge Mut. Ins. Co., 136 AD2d 688). In addition, the court properly denied plaintiff's motion for renewal since there was no showing that the new facts were unavailable to plaintiff at the time of the prior motion (CPLR 2221 [e] [3]). In any event, said new facts did not warrant a different result. The new facts consisted of a letter from the Disciplinary Committee which merely stated that it did not have jurisdiction over defendants' complaint against plaintiff because it involved a fee dispute. It was not a determination by the Disciplinary Committee as to the reasonableness of plaintiff's fees and, as such, the doctrines of res judicata and collateral estoppel are inapplicable.
Finally, while plaintiff argues that the Civil Court did not have jurisdiction over the defendants' counterclaim because it seeks rescission and is above the monetary jurisdictional limit, defendants' counterclaim is for money only and, as such, the Civil Court has jurisdiction over same ( see CCA 208 [b]).
Pesce, P.J., Weston Patterson and Rios, JJ., concur.