Opinion
2012-12-5
Antoinette ROTHMAN, et al., plaintiffs-respondents, v. WESTFIELD GROUP, defendant-respondent, SMC Foods, Inc., et al., appellants.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler, Steven M. Kaye, Jr., and David Lore of counsel), for appellants. Law Office of Borrelli & Associates, PLLC, Great Neck, N.Y. (Michael J. Borrelli of counsel), for plaintiffs-respondents.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler, Steven M. Kaye, Jr., and David Lore of counsel), for appellants. Law Office of Borrelli & Associates, PLLC, Great Neck, N.Y. (Michael J. Borrelli of counsel), for plaintiffs-respondents.
ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, etc., the defendants SMC Foods, Inc., and RVC Food Management, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), entered June 6, 2011, as conditionally denied their motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action seeking damages for injuries allegedly arising from a slip-and-fall accident. After issue was joined, the defendants SMC Foods, Inc., and RVC Food Management, Inc. (hereinafter together the SMC defendants), served the plaintiffs with various discovery demands and a demand for a bill of particulars. Approximately four months after serving those demands, the SMC defendants moved, inter alia, pursuant to CPLR 3126 for an order of preclusion. The plaintiffs opposed the motion and simultaneously served responses to the SMC defendants' demands. In an order dated November 30, 2010 (hereinafter the conditional order), the Supreme Court, Nassau County, found that the plaintiffs failed to timely provide the SMC defendants with a proper verified bill of particulars or responses to their combined demands and issued a conditional order of preclusion directing the plaintiffs, within 30 days of the order, to provide certain supplemental responses to the SMC defendants' demands. The conditional order provided that if the plaintiffs failed to do so, they would be precluded from introducing at trial any evidence that was the subject of the directives in the conditional order.
The plaintiffs did not submit amended or any further supplemental responses before the court-imposed deadline, and did not request an extension of time to do so. Approximately 50 days after the deadline set in the conditional order, the SMC defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, contending that the plaintiffs' failure to comply with the mandates of the conditional order rendered it absolute, and, thus, the plaintiffs were now precluded from offering evidence needed to maintain their action. The Supreme Court, among other things, conditionally denied that branch of the SMC defendants' motion, and the SMC defendants appeal from that portion of the order.
“A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” ( Wei Hong Hu v. Sadiqi, 83 A.D.3d 820, 821, 921 N.Y.S.2d 133;see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 79, 917 N.Y.S.2d 68, 942 N.E.2d 277;Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830, 860 N.Y.S.2d 417, 890 N.E.2d 179). “If the party fails to produce the discovery by the specified date, the conditional order becomes absolute” ( Wei Hong Hu v. Sadiqi, 83 A.D.3d at 821, 921 N.Y.S.2d 133). Here, the plaintiffs failed to comply with the directives contained in the conditional order in a timely fashion, and the conditional order became absolute ( see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d at 78, 917 N.Y.S.2d 68, 942 N.E.2d 277;Pugliese v. Mondello, 67 A.D.3d 880, 891 N.Y.S.2d 414).
“[T]o obtain relief from the dictates of a conditional order that will preclude a party from submitting evidence in support of a claim or defense, the defaulting party must demonstrate (1) a reasonable excuse for the failure to produce the requested items and (2) the existence of a meritorious claim or defense” ( Gibbs v. St. Barnabas Hosp., 16 N.Y.3d at 80, 917 N.Y.S.2d 68, 942 N.E.2d 277;see Wei Hong Hu v. Sadiqi, 83 A.D.3d at 821, 921 N.Y.S.2d 133;Nurse v. Figeroux & Assoc., 47 A.D.3d 778, 849 N.Y.S.2d 644). Here, the Supreme Court properly concluded that the plaintiffs demonstrated the existence of a potentially meritorious cause of action through, inter alia, the submission of their complaint, which was verified by the injured plaintiff, as well as the submission of certain medical records of the injured plaintiff ( seeCPLR 105[u]; Cope v. Barakaat, 89 A.D.3d 670, 672, 931 N.Y.S.2d 910;Gibbons v. Court Officers' Benevolent Ass'n of Nassau County, 78 A.D.3d 654, 909 N.Y.S.2d 917;Felder v. New York City Tr. Auth., 238 A.D.2d 543, 657 N.Y.S.2d 83). Furthermore, the Supreme Court did not improvidently exercise its discretion in concluding that the law office failure of the plaintiffs' counsel was a reasonable excuse for the plaintiffs' failure to comply with the directives of the conditional order ( seeCPLR 2005; Remote Meter Tech. of N.Y., Inc. v. Aris Realty Corp., 83 A.D.3d 1030, 1032, 922 N.Y.S.2d 440;Betty v. City of New York, 12 A.D.3d 472, 784 N.Y.S.2d 621).
The parties' remaining contentions are either without merit or not properly before this Court.
Accordingly, the Supreme Court properly conditionally denied the SMC defendants' motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.