Cannon v. 111 Fulton St. Condo., Inc.

162 A.D.3d 838

80 N.Y.S.3d 76

Elcie CANNON, appellant,

v.111 FULTON STREET CONDOMINIUM, INC., et al., respondents, et al., defendant.

2015–10217

2016–04980

Index No. 194/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 30, 2018

June 20, 2018

Moskowitz Passman & Edelman, New York, N.Y. (Jeffrey M. Motelson of counsel), for appellant.

Morris, Duffy, Alonso & Faley, LLP, New York, N.Y. (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondents.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Leonard Livote, J.), entered August 4, 2015, and (2) an order of the same court entered March 31, 2016. The order entered August 4, 2015, insofar as appealed from, granted that branch of the motion of the defendants 111 Fulton Street Condominium, Inc., and Cooper Square Realty, Inc., which was pursuant to CPLR 3126 to preclude the plaintiff from offering evidence at trial. The order entered March 31, 2016, insofar as appealed from, granted the motion of the defendants 111 Fulton Street Condominium, Inc., and Cooper Square Realty, Inc., in effect, for summary judgment dismissing the complaint insofar as asserted against them and denied the plaintiff's cross motion for leave to renew and reargue her opposition to that branch of those defendants' prior motion which was pursuant to CPLR 3126 to preclude her from offering evidence at trial.

ORDERED that the order entered August 4, 2015, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and that branch of the motion of the defendants 111 Fulton Street Condominium, Inc., and Cooper Square Realty, Inc., which was pursuant to CPLR 3126 to preclude the plaintiff from offering evidence at trial is denied; and it is further,

ORDERED that the appeal from so much of the order entered March 31, 2016, as denied that branch of the plaintiff's cross motion which was for leave to reargue her opposition to that branch of the prior motion of the defendants 111 Fulton Street Condominium, Inc., and Cooper Square Realty, Inc., which was pursuant to CPLR 3126 to preclude the plaintiff from offering evidence at trial is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered March 31, 2016, is reversed insofar as reviewed, on the law, without costs or disbursements, the motion of the defendants 111 Fulton Street Condominium, Inc., and Cooper Square Realty, Inc., in effect, for summary judgment dismissing the complaint insofar as asserted against them is denied, and that branch of the plaintiff's cross motion which was for leave to renew her opposition to that branch of those defendants' prior motion which was pursuant to CPLR 3126 to preclude her from offering evidence at trial is denied as academic.

The plaintiff allegedly was injured in a trip-and-fall accident on the sidewalk in front of a building owned by the defendant 111 Fulton Street Condominium, Inc., and managed by the defendant Cooper Square Realty, Inc. (hereinafter together the defendants). Thereafter, the plaintiff commenced this action against the defendants, among others, to recover damages for her personal injuries. The defendants answered and sought discovery and to depose the plaintiff. The plaintiff repeatedly failed to provide the required discovery and failed to appear for her deposition as ordered by the Supreme Court on three separate occasions.

The plaintiff and the defendants then entered into a so-ordered stipulation which provided, inter alia, that the plaintiff was required to appear for a deposition "on or before" March 16, 2015, "at a time and location to be agreed upon." The so-ordered stipulation stated that failure to appear would "result in preclusion, upon filing of an Affirmation of noncompliance." The plaintiff did not appear for a deposition on or before that date, and the defendants moved, inter alia, pursuant to CPLR 3126 to preclude the plaintiff from offering evidence at trial. The defendants' counsel submitted an affirmation of noncompliance in support of the motion in which he stated that, pursuant to the terms of the so-ordered stipulation, "the plaintiff was to appear for a deposition on March 16, 2015." The defendants' counsel stated that on March 15, 2015, an unnamed member of his office contacted the plaintiff's counsel to "confirm [the plaintiff's] appearance for the scheduled deposition." The plaintiff's counsel allegedly responded that "they did not have the date in their calendar," and that the plaintiff would not be able to attend.

In an affirmation in opposition to the motion, the plaintiff's counsel averred that the defendants' counsel did not contact him regarding the plaintiff's deposition until the afternoon of March 13, 2015, and, in response to his inquiries, defense counsel's clerk was unable to supply a time or place for...