Ramirez v. 2917 Grand Concourse

144 N.Y.S.3d 866 (Mem)

Angela RAMIREZ, Plaintiff–Appellant,

v.2917 GRAND CONCOURSE, Defendant–Respondent.

14028

Index No. 305816/14

Case No. 2020-03366

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

ENTERED June 8, 2021

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.

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, 863 N.Y.S.2d 193 [1st Dept. 2008], affd 12 N.Y.3d 846, 881 N.Y.S.2d 390, 909 N.E.2d 83 [2009], cert denied 559 U.S. 905, 130 S.Ct. 1301, 175 L.Ed.2d 1076 [2010] ). Thus, the court correctly granted defendant's motion for summary judgment (see id. ; Arzuaga v. Tejada, 133 A.D.3d 454, 454, 19 N.Y.S.3d 280 [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, 113 N.Y.S.3d 539 [1st Dept. 2020] ; Dalrymple v. Martin Luther King Community Health Ctr., 127 A.D.2d 69, 514 N.Y.S.2d 385 [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, 761 N.Y.S.2d 31 [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 (se...