Opinion
3335, 111435/10.
03-07-2017
Sheryl R. MENKES, Plaintiff–Appellant, v. Richard DELIKAT, etc., et al., Defendants–Respondents.
Sheryl R. Menkes, appellant pro se. Law Offices of Jonathan D. Shramko, New York (Jonathan D. Shramko of counsel), for respondents.
Sheryl R. Menkes, appellant pro se.
Law Offices of Jonathan D. Shramko, New York (Jonathan D. Shramko of counsel), for respondents.
ACOSTA, J.P., RICHTER, MANZANET–DANIELS, GISCHE, WEBBER, JJ.
Order, Supreme Court, New York County (Paul Wooten, J.), entered October 16, 2015, which, to the extent appealable, denied plaintiff's motion to renew, and thereupon vacate, a prior order granting defendants' motion to dismiss the complaint pursuant to CPLR 3126 based on plaintiff's failure to comply with discovery orders, unanimously affirmed, and the appeal therefrom otherwise dismissed, as taken from a nonappealable order, without costs.
No appeal lies from the portion of the order that denied reargument (Jones v. 170 E. 92nd St. Owners Corp., 69 A.D.3d 483, 893 N.Y.S.2d 534 [1st Dept.2010] ; see CPLR 5701[a][2][viii] ). Thus, plaintiff's arguments that the motion court misapprehended the law or facts when it granted defendants' motion and denied her cross motion are not properly before this Court (see Stratakis v. Ryjov, 66 A.D.3d 411, 885 N.Y.S.2d 597 [1st Dept.2009] ; CPLR 2221[d][2] ).
As for the motion for leave to renew, plaintiff presented additional excuses and explanations for her delay in complying with outstanding discovery orders, but these facts were available at the time of the underlying motion and plaintiff did not explain why she did not offer them in opposition to the underlying motion (see Rancho Santa Fe Assn. v. Dolan–King, 36 A.D.3d 460, 461, 829 N.Y.S.2d 39 [1st Dept.2007] ; CPLR 2221[e][2] and [3 ] ).
Were we to reach the merits of the underlying order, we would find that the motion court providently exercised its discretion in determining that plaintiff's failure to respond to a simple demand for documentary discovery, as directed in five compliance conferences over the course of a year and one-half, was wilful and contumacious (see Fish & Richardson, P.C. v. Schindler, 75 A.D.3d 219, 220, 901 N.Y.S.2d 598 [1st Dept.2010] ; Brewster v. FTM Servo, Corp., 44 A.D.3d 351, 352, 844 N.Y.S.2d 5 [1st Dept.2007] ; CPLR 3126 ). Plaintiff failed to tender a reasonable excuse to overcome defendants' showing of wilfulness (see Reidel v. Ryder TRS, Inc., 13 A.D.3d 170, 171, 786 N.Y.S.2d 487 [1st Dept.2004] ). Accordingly, plaintiff's belated disclosure did not outweigh the prejudice caused defendants in their preparation for trial (see Brewster, 44 A.D.3d at 352, 844 N.Y.S.2d 5 ).