Sokolnik v. Voronova

2023 NY Slip Op 06156

Nadia Sokolnik, respondent, v. Yelena Voronova, appellant.

No. 2021-06927, Index No. 513945/17

Supreme Court of New York, Second Department

November 29, 2023

Philip Gurevich, Brooklyn, NY, for appellant.

Efrom J. Gross, West Hempstead, NY (Michael Dachs of counsel), for respondent.

ANGELA G. IANNACCI, J.P., PAUL WOOTEN, HELEN VOUTSINAS, LILLIAN WAN JJ.

DECISION & ORDER

In an action to recover damages for podiatric malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 9, 2021. The order, in effect, granted the plaintiff's motion for leave to reargue her opposition to the defendant's prior motion, in effect, to enforce a self-executing order of the same court dated December 9, 2020, precluding the plaintiff from testifying at trial, and pursuant to CPLR 3126 to dismiss the complaint, which, in effect, had been granted in an order of the same court dated July 1, 2021, and, upon reargument, vacated the order dated July 1, 2021, and thereupon denied the defendant's prior motion, in effect to enforce the self-executing order dated December 9, 2020 and pursuant to CPLR 3126 to dismiss the complaint, and vacated so much of the order dated December 9, 2020, as precluded the plaintiff from testifying at trial.

ORDERED that the order dated September 9, 2021, is affirmed, with costs.

In July 2017, the plaintiff commenced this action to recover damages against the defendant for podiatric malpractice. In September 2017, the defendant served a verified answer. By notice of motion dated May 10, 2021, the defendant moved, in effect, to enforce a self-executing order of the same court dated December 9, 2020, precluding the plaintiff from testifying at trial, and pursuant to CPLR 3126 to dismiss the complaint. The defendant contended, among other things, that the plaintiff had failed to comply with court-ordered discovery including the terms of the self-executing order dated December 9, 2020, which, inter alia, required the parties to conduct depositions on or before February 19, 2021. In an order dated July 1, 2021 (hereinafter the dismissal order), the Supreme Court, in effect, granted the defendant's motion.

In August 2021, the plaintiff moved for leave to reargue her opposition to the defendant's motion. In an order dated September 9, 2021, the Supreme Court, in effect, granted leave to reargue, and upon reargument, vacated the dismissal order, and thereupon denied the defendant's prior motion, and vacated so much of the self-executing order as precluded the plaintiff from testifying at trial. The defendant appeals.

"A motion for leave to reargue 'shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion'" (Partanio v Federal Realty Inv. Trust, 213 A.D.3d 685, 686, quoting CPLR 2221[d][2]; see U.S. Bank N.A. v Cimino, 212 A.D.3d 683, 684). Such a motion is addressed to the sound discretion of the court which determined the original motion (see Onewest Bank, FSB v N & R Family Trust, 200 A.D.3d 900, 901; LaSalle Bank N.A. v Lawrence, 186 A.D.3d 1507, 1508).

"CPLR 3126(3) provides, in relevant part, that '[i]f any party... refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them[,]... an order... dismissing the action or any part thereof" (Von Maack v Wyckoff Hgts. Med. Ctr., 195 A.D.3d 769, 770, quoting CPLR 3126[3]; see Cobo v Pennwalt Corp. Stokes Div., 185 A.D.3d 650, 652). "CPLR 3126 broadly empowers a trial court to craft a conditional order of preclusion" (Robert v Azoulay Realty Corp., 209 A.D.3d 781, 785 [internal quotation marks omitted]).

"When a litigant fails to comply with the...