Opinion
2006-1252 K C.
Decided August 12, 2010.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered May 4, 2006. The order denied plaintiff's motion to "vacate" a prior discovery order dated March 29, 2006 and provided that plaintiff was precluded from offering any evidence at trial which was subject to the order of March 29, 2006.
ORDERED that the appeal from so much of the order as denied plaintiff's motion to "vacate" the prior discovery order dated March 29, 2006 is dismissed; and it is further,
ORDERED that the order, insofar as reviewed, is modified by striking the provision thereof precluding plaintiff from offering any evidence at trial which was subject to the order of March 29, 2006; by substituting therefor a provision deeming plaintiff to have complied with the order dated March 29, 2006 insofar as said order concerns defendant Public Administrator: Kings County, as Administrator of the Goods and Chattels of Whitmore Johnson, Deceased; and by granting plaintiff seven days from the date that a copy of this order and decision are served upon plaintiff with notice of entry to complete compliance with the discovery order dated March 29, 2006 insofar as said order concerns defendant Jean Time in accordance with the decision herein; as so modified, the order, insofar as reviewed, is affirmed without costs.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT, JJ.
Plaintiff brought this action in the Supreme Court, Kings County, to recover damages for injuries he sustained on June 14, 1996, when he was a passenger in a car that was involved in a vehicular collision. Following pretrial disclosure, a note of issue was filed in 1999. The trial of the action was thereafter delayed by various occurrences, including, among other things, the death of defendant Whitmore Johnson and administration proceedings relating to his estate. In February 2005, the action was transferred to the Civil Court, Kings County, pursuant to CPLR 325 (d), where it was placed on the trial calendar. In April 2005, plaintiff served on defendants a report from a new doctor relating to the injuries he had sustained in the 1996 accident. In November 2005, defendants served new discovery demands on counsel for plaintiff. Plaintiff's attorney, however, has asserted that she did not become aware of defendants' outstanding discovery demands until 2006, when Johnson's estate moved for authorizations to obtain plaintiff's medical records with respect to the 1996 accident that complied with the Health Insurance Portability and Accountability Act (HIPAA) and Time cross-moved for a preclusion order or, in the alternative, for HIPAA-compliant authorizations with respect to the subject 1996 accident, as well as HIPAA-compliant authorizations, and authorizations to obtain the no-fault and non-privileged legal files pertaining to two additional accidents in which plaintiff had allegedly been involved: one in 1995, prior to the accident at issue here, and one "subsequent" to the accident at issue. Plaintiff contested defendants' motions, on the grounds that defendants were not entitled to additional discovery because a note of issue had already been filed, that plaintiff had previously provided medical authorizations to defense counsel, that some of the items defendants sought did not exist, and that defendants were using discovery to delay the trial of the action. By order entered March 29, 2006, defendants' motions were granted and plaintiff was ordered to provide the items defendants had requested by April 13, 2006 "or be precluded."
Plaintiff moved, by order to show cause (OSC) signed on April 6, 2006, to "vacate" the March 29, 2006 order and stay compliance therewith. The OSC provided that plaintiff's obligation to comply with the order of March 29th was stayed, in effect, pending the determination of the motion. Defendants opposed plaintiff's motion, and Time cross-moved for sanctions under CPLR 3126. In his papers submitted in opposition to Time's cross motion and in reply to the opposition papers submitted on plaintiff's motion, plaintiff showed that he had entirely complied with the order of March 29, 2006, insofar as it related to Johnson's estate, by serving, prior to the expiration of the time for compliance as enlarged by the temporary stay granted on April 6, 2006, HIPAA-compliant authorizations with respect to the 1996 accident on counsel for Johnson's estate. Plaintiff further demonstrated that he had largely complied with the order of March 29, 2006, insofar as it related to Time, by serving, on counsel for Time, HIPAA-compliant authorizations with respect to the 1996 accident, and he submitted an affidavit in which he stated that he had not received treatment for any injuries resulting from the 1995 accident and had not made any legal claims with respect thereto. However, plaintiff failed to address the requirement of the March 29, 2006 order that he provide authorizations to Time with respect to a "subsequent" accident. By order entered May 4, 2006, the Civil Court denied plaintiff's motion to "vacate" the order of March 29, 2006, and stated that since plaintiff had failed to comply with the order of March 29, 2006 by April 13, 2006, plaintiff was "precluded from offering any evidence at trial subject to the order of March 29, 2006." The Civil Court did not expressly address Time's cross motion for an order of preclusion. Plaintiff appeals this order in its entirety.
Plaintiff's motion to "vacate," which was not based on any new proof, and rather sought to convince the Civil Court to change its mind, was actually a motion for leave to reargue ( see Siegel, NY Prac § 254, at 434 [4th ed]), and the denial thereof is not appealable ( see e.g. Trahan v Galea, 48 AD3d 791; Eight in One Pet Prods. v Janco Press, Inc., 37 AD3d 402). Accordingly, the appeal from the portion of the May 4, 2006 order which denied plaintiff's motion to "vacate" is dismissed.
Since plaintiff timely and fully complied with so much of the March 29, 2006 discovery order as required him to provide authorizations to Johnson's estate, the Civil Court erred in concluding that plaintiff was not in compliance with the March 29, 2006 order with respect to that defendant. As noted above, with respect to Time, plaintiff complied with the March 29, 2006 discovery order to the extent that he provided authorizations pertaining to the 1996 automobile accident and explained, by affidavit, the impossibility of complying with so much of the March 29, 2006 discovery order as pertained to the 1995 accident. However, plaintiff did not fully comply with the March 29, 2006 order with respect to Time in that plaintiff did not supply authorizations pertaining to a "subsequent" automobile accident or make any reference to that accident.
The order entered May 4, 2006 erroneously concluded that plaintiff was precluded because of his failure to complete compliance with the order of March 29, 2006 by April 13, 2006. In fact, plaintiff's duty to comply with the March 29, 2006 order was stayed by the April 6, 2006 OSC, and plaintiff's time to complete compliance therewith should accordingly have been extended by seven days from May 4, 2006.
We therefore conclude that plaintiff should be afforded an additional seven-day opportunity to provide authorizations to defendant Time with respect to the "subsequent" accident, as required by the Civil Court's order of March 29, 2006, or to establish in evidentiary form the reason for his failure to do so.
Golia and Steinhardt, JJ., concur.
Weston, J.P., dissents in part and concurs in part in a separate memorandum.
Weston, J.P., dissents in part and concurs in part and votes to dismiss the appeal from so much of the order as denied plaintiff's motion to "vacate" the prior discovery order dated March 29, 2006 and to affirm the order insofar as reviewed, in the following memorandum:
Although the Civil Court, by order entered March 29, 2006, directed plaintiff to provide certain discovery by April 13, 2006 or face preclusion, plaintiff did not comply with the court's order. Instead, plaintiff moved by order to show cause on April 6, 2006 to "vacate" the court's order. The order to show cause, which was essentially a motion for leave to reargue, was signed by a different judge, who stayed compliance with the March 29, 2006 order on the ground that plaintiff's counsel's office "is not able to comply with the order in its present state." In my view, since the March 29, 2006 order specifically directed compliance by a certain date and was never reversed, it was error for the second judge to stay that order. Accordingly, I respectfully dissent in part from the majority's determination.
As a general rule, a court should not "reconsider, disturb or overrule an order in the same action of another judge of coordinate jurisdiction" ( Glover Bottled Gas Corp. v Local 282, IBT, 89 AD2d 1007; see also CPLR 2221; Cellamare v Lakeman, 36 AD3d 905). CPLR 2221 (a), which codifies this rule, provides that "[a] motion
. . . for leave to . . . stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it . . ." The purpose of this provision is to prevent "one nisi prius judge from in effect sitting as a court of appeals over a colleague" and reversing what that colleague has done (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:1).
Here, by granting plaintiff a stay of the March 29, 2006 order, the second judge effectively vacated the first judge's original order, which unequivocally directed plaintiff to comply with discovery by April 13, 2006 or face preclusion ( cf. Guaman v Tran, 52 AD3d 656; Schmitt v City of New York, 50 AD3d 1010 [vacating Supreme Court's temporary restraining order where it "had the effect of undermining (a prior) order of this Court"]). While I recognize that CPLR 2221 authorizes a judge to rule on a motion for leave to stay or vacate a prior order of another judge in cases where the original judge is unable to hear it (CPLR 2221 [a]), it does not authorize a judge to undo what the original judge has already done (Siegel, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2221:4, 2010 Supp Pamph, at 118). By upholding the validity of the second judge's stay, despite the contrary directive from the first judge, the majority in this case is, in effect, allowing one judge to undo or nullify what another judge has done. In my opinion, since the second judge in this case was without authority to extend the April 13, 2006 deadline imposed by the first judge in the March 29, 2006 order, plaintiff was required to comply with the April 13, 2006 deadline or face preclusion. His failure to do so justified the court's order denying his motion to vacate the March 29, 2006 order and precluding him from offering any evidence at trial.
Accordingly, I vote to affirm the order entered May 4, 2006 insofar as reviewed.