Opinion
12-08-2016
In re Marianne SPIEGEL, Plaintiff–Appellant, v. Carl KEMPNER, Defendant–Respondent, John Doe Nos. 1 through 5, Defendants.
Rea & Associates, LLC, New York (Edward M. Shapiro of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for respondent.
Rea & Associates, LLC, New York (Edward M. Shapiro of counsel), for appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, ACOSTA, ANDRIAS, MOSKOWITZ, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 10, 2015, which denied plaintiff's motion to remove the case from Civil Court to Supreme Court and, upon removal, to amend the complaint, unanimously affirmed, without costs.This is plaintiff's second motion to remove the action from Civil Court to Supreme Court. Her first was denied in January 2012, on the ground that she had not made a sufficient showing on the merits of her case to warrant the relief requested. On this second motion, plaintiff again failed to show that there was "some reasonable basis" for her claim for increased damages or indeed that the damages can be attributed to negligence on defendant's part (Matter of Victor v. de
Maziroff, 275 App.Div. 69, 75, 87 N.Y.S.2d 543 [1st Dept.1949], affd. 300 N.Y. 686, 91 N.E.2d 586 [1950] ; see Platt v. Flesher, 115 A.D.3d 468, 981 N.Y.S.2d 532 [1st Dept.2014] ).
Nor did plaintiff establish her right to amend the complaint, since she did not proffer a reasonable excuse for her failure to make her second motion until more than three years after the first one was denied and nearly nine years after the flooding incident in question (see Oil Heat Inst. of Long Is. Ins. Trust v. RMTS Assoc., 4 A.D.3d 290, 293–294, 772 N.Y.S.2d 313 [1st Dept.2004] ). Contrary to plaintiff's contention, defendant has been hindered in the preparation of his case as a result of her delay (see Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23–24, 444 N.Y.S.2d 571, 429 N.E.2d 90 [1981] ).
We have considered plaintiff's remaining contentions and find them unavailing.