Opinion
2013-04-10
Iosif ARONOV, respondent, v. Aharon SHIMONOV, et al., appellants, et al., defendant.
Muscarella & Diraimo, LLP (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant Hers Pasternak. Stewart H. Friedman, Garden City, N.Y. (David A. Harrison of counsel), for appellant Aharon Shimonov.
Muscarella & Diraimo, LLP (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant Hers Pasternak. Stewart H. Friedman, Garden City, N.Y. (David A. Harrison of counsel), for appellant Aharon Shimonov.
Elliot Ifraimoff & Associates, P.C., Forest Hills, N.Y. (Dmitriy Shulman of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, (1) the defendant Hers Pasternak and the defendant Aharon Shimonov separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike their separate answers unless they appeared for depositions by a date certain, and (2) the defendant Hers Pasternak appeals from so much of an order of the same court entered October 23, 2012, as denied that branch of his motion which was pursuant to CPLR 2221(e) for leave to renew his opposition to that branch of the plaintiff's prior motion which was to strike his answer, and the defendant Aharon Shimonov separately appeals from so much of the same order as denied his motion which was denominated as one for leave to renew and reargue, but which was, in actuality, a motion to vacate so much of the prior order entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike his answer, upon his failure to oppose that branch of the plaintiff's motion.
ORDERED that the appeal by the defendant Aharon Shimonov from so much of the order entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike his answer is dismissed; and it is further,
ORDERED that the order entered June 27, 2012, is affirmed insofar as reviewed; and it is further,
ORDERED that the order entered October 23, 2012, is affirmed; and it is further,
ORDERED that the plaintiff is awarded one bill of costs.
The appeal by the defendant Aharon Shimonov from so much of the order entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike his answer is dismissed, as Shimonov did not oppose that branch of the plaintiff's motion, and no appeal lies from an order or a portion thereof which was entered upon the default of the appealing party ( seeCPLR 5511; Sanchez v. Village of Ossining, 271 A.D.2d 674, 707 N.Y.S.2d 866;Lumbermen's Mut. Cas. Co. v. Fireman's Fund Am. Ins. Co., 117 A.D.2d 588, 498 N.Y.S.2d 59).
The Supreme Court providently exercised its discretion in conditionally granting that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer of the defendant Hers Pasternak unless he appeared for a deposition by a date certain. Pasternak repeatedly failed to comply with court orders directing him to appear for a deposition, and failed to provide a reasonable excuse to justify those failures ( see Bernal v. Singh, 72 A.D.3d 716, 717, 898 N.Y.S.2d 858;Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954, 954–955, 878 N.Y.S.2d 178;Stinton v. Robin's Wood, Inc., 45 A.D.3d 203, 842 N.Y.S.2d 477).
The Supreme Court also providently exercised its discretion in denying that branch of Pasternak's motion which was for leave to renew his opposition to that branch of the plaintiff's motion which was to strike his answer. “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” ( Elder v. Elder, 21 A.D.3d 1055, 1055, 802 N.Y.S.2d 457;see Rose v. Levine, 98 A.D.3d 1015, 1015–1016, 951 N.Y.S.2d 880;Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146). A motion for leave to renew must be based upon new facts, not offered on the prior motion that would change the prior determination, and the party seeking renewal must have a “reasonable justification” for the failure to present such facts on the original motion (CPLR 2221[e][3]; see Matter of Korman v. Bellmore Pub. Schools, 62 A.D.3d 882, 884, 879 N.Y.S.2d 194). Pasternak did not offer a reasonable justification for failing to present the physician's affidavit in opposition to the original motion ( see Rose v. Levine, 98 A.D.3d at 1015–1016, 951 N.Y.S.2d 880;Smith v. State of New York, 71 A.D.3d 866, 868, 896 N.Y.S.2d 454;Elder v. Elder, 21 A.D.3d at 1055–1056, 802 N.Y.S.2d 457). The excuse of Pasternak's attorney that he was unable to obtain a physician's affidavit at the time of the original motion did not amount to a reasonable justification, given that seven months elapsed between the time of the plaintiff's original motion and the final return date, which had been adjourned on multiple occasions.
The Supreme Court providently exercised its discretion in denying Shimonov's motion, in effect, to vacate so much of the prior order entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to strike his answer for his repeated failures to appear at court-ordered depositions, upon his failure to oppose that branch of the plaintiff's motion. To vacate so much of the order entered June 27, 2012, as conditionally granted that branch of the plaintiff's motion which was to strike his answer, Shimonov was required to demonstrate a reasonable excuse for his default in opposing that branch of the plaintiff's motion which was to strike his answer and the existence of a potentially meritorious opposition to that branch of the plaintiff's motion ( seeCPLR 5015[a][1]; Gross v. Johnson, 102 A.D.3d 921, 958 N.Y.S.2d 751;Infante v. Breslin Realty Dev. Corp., 95 A.D.3d 1075, 1076, 944 N.Y.S.2d 608;Dokaj v. Ruxton Tower Ltd. Partnership, 91 A.D.3d 812, 813, 938 N.Y.S.2d 101). Shimonov failed to proffer any excuse for his default in opposing that branch of the plaintiff's motion which was to strike his answer. Furthermore, he failed to demonstrate a potentially meritorious opposition to that branch of the plaintiff's motion which was to strike his answer ( see Carabello v. Luna, 49 A.D.3d 679, 680, 853 N.Y.S.2d 663;Duncan v. Hebb, 47 A.D.3d 871, 850 N.Y.S.2d 610;Maignan v. Nahar, 37 A.D.3d 557, 830 N.Y.S.2d 249).
We have not considered matter dehors the record referred to in the appellants' reply briefs ( see Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d 936, 946 N.Y.S.2d 491;Poupis v. Brown, 90 A.D.3d 881, 883, 935 N.Y.S.2d 127;Krzyanowski v. Eveready Ins. Co., 28 A.D.3d 613, 812 N.Y.S.2d 382).