Opinion
2021-03563 Index 305816/14
06-08-2021
Angela Ramirez, Plaintiff-Appellant, v. 2917 Grand Concourse, Defendant-Respondent. Appeal No. 14028 No. 2020-03366
Pollack Pollack Isaac & DeCicco LLP, New York (Kenneth J. Gorman of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker, LLP, New York (Ross Barbour of counsel), for respondent.
Pollack Pollack Isaac & DeCicco LLP, New York (Kenneth J. Gorman of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York (Ross Barbour of counsel), for respondent.
Before: Kapnick, J.P., Singh, Moulton, González, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered June 25, 2020, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion to renew defendant's motion that resulted in the January 23, 2017 order conditionally precluding plaintiff from introducing any evidence of injury, unanimously affirmed, without costs.
In March of 2017, when plaintiff failed to appear for a physical examination, the conditional order of preclusion issued on January 23, 2017 became self-executing (see Arts4All, Ltd. v Hancock, 54 A.D.3d 286, 286 [1st Dept 2008], affd 12 N.Y.3d 846 [2009], cert denied 559 U.S. 905, [2010]). Thus, the court correctly granted defendant's motion for summary judgment (see id.; Arzuaga v Tejada, 133 A.D.3d 454, 454 [1st Dept 2015]). While the motion court should have heard plaintiff's cross motion for renewal, in light of the administrative transfer of this matter and the fact that the cross motion was inextricably intertwined with defendant's summary judgment motion, such error is academic (see Totaram v Gibson, 179 A.D.3d 451 [1st Dept 2020]; Dalrymple v Martin Luther King Community Health Ctr., 127 A.D.2d 69 [2d Dept 1987]. While styled as a motion to renew, the cross motion was in actuality an untimely and unpersuasive motion to reargue (see CPLR 2221[e][2]). Plaintiff's "new fact," i.e. that she had left the country shortly before her last scheduled physical examination due to the death of an unindentified family member, was not a fact unknown to her at the time of defendant's original motion seeking discovery sanctions (see Cuccia v City of New York, 306 A.D.2d 2 [1st Dept 2003]). Indeed, plaintiff admitted knowing that her physical was pending, and yet did not make any effort to remain in contact with her counsel. Thus, even if the motion were timely or her absence could be considered the basis for a motion to renew, that absence could not serve as a reasonable excuse for her failure to comply with discovery in the first instance (see Tenamaza v Knickerbocker Constr. II, LLC, 96 A.D.3d 562 [1st Dept 2012]; Sheikh v New York City Transit Auth., 258 A.D.2d 347 [1st Dept 1999]).
In addition to the foregoing, plaintiff's failure to respond to defendant's CPLR 3216 notice by filing a note of issue or making a motion to extend the discovery period, an issue the motion court did not reach, would have warranted dismissal on those alternate grounds (see Bustamante v Green Door Realty Corp., 158 A.D.3d 444 [1st Dept 2018]).