Opinion
2011-10-18
Fatima BLACKWELL, et al., appellants,v.MIKEVIN MANAGEMENT III, LLC, respondent.
Alan Jay Binger, New City, N.Y., for appellants.Gannon, Lawrence & Rosenfarb, New York, N.Y. (Peter J. Gannon of counsel), for respondent.
Alan Jay Binger, New City, N.Y., for appellants.Gannon, Lawrence & Rosenfarb, New York, N.Y. (Peter J. Gannon of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered June 29, 2010, which granted the defendant's motion, in effect, for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Talajah Ellison, and denied their cross motion pursuant to CPLR 3217(b), in effect, to voluntarily discontinue the action without prejudice insofar as commenced on behalf of the plaintiff Talajah Ellison, and (2) an order of the same court entered September 14, 2010, which denied their motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue.
ORDERED that the appeal from the order entered September 14, 2010, is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
ORDERED that the order entered June 29, 2010, is reversed, on the law, on the facts, and in the exercise of discretion, the defendant's motion, in effect, for summary judgment dismissing the complaint insofar as asserted on behalf of the plaintiff Talajah Ellison is denied, and the plaintiffs' cross motion pursuant to CPLR 3217(b), in effect, to voluntarily discontinue the action without prejudice insofar as commenced on behalf of the plaintiff Talajah Ellison is granted; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
While in the kitchen of her rental apartment in Yonkers, the plaintiff Fatima Blackwell (hereinafter the plaintiff), then nine months pregnant with the infant plaintiff, Talajah Ellison (hereinafter the infant plaintiff), allegedly was injured when she was struck in the head by pieces of falling ceiling plaster. Six weeks after birth, the infant plaintiff began to experience seizures.
The plaintiff commenced this action on her own behalf and on behalf of the infant plaintiff seeking to recover damages for her personal injuries and those of the infant plaintiff. Following joinder of issue and the completion of some discovery, but prior to depositions being conducted, the parties settled the plaintiff's claims for her own personal injuries. Thereafter, the defendant moved, in effect, for summary judgment dismissing the complaint insofar as asserted on behalf of the infant plaintiff,
alleging that there was no proof that the infant plaintiff's seizures had been caused by the falling ceiling plaster striking the plaintiff while the infant plaintiff was in utero. The plaintiffs cross-moved pursuant to CPLR 3217(b), in effect, to voluntarily discontinue the action without prejudice insofar as commenced on behalf of the infant plaintiff. The Supreme Court granted the defendant's motion and denied the plaintiffs' cross motion. We reverse.
As the party seeking summary judgment, the defendant had the burden of demonstrating its entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Here, not only were the submitted medical records not in admissible form because they were not certified or authenticated ( see CPLR 4518[c]; Banfield v. New York City Tr. Auth., 36 A.D.3d 732, 828 N.Y.S.2d 534; Baez v. Sugrue, 300 A.D.2d 519, 752 N.Y.S.2d 385), but also, the defendant did nothing more than point to gaps in the plaintiffs' case in its efforts to meet its prima facie burden. A movant fails to satisfy its prima facie burden by merely pointing out gaps in the plaintiff's case ( see Englington Med., P.C. v. Motor Veh. Acc. Indem. Corp., 81 A.D.3d 223, 916 N.Y.S.2d 122; Shafi v. Motta, 73 A.D.3d 729, 730, 900 N.Y.S.2d 410; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs., 4 A.D.3d 387, 388, 771 N.Y.S.2d 389). Since the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law, its motion should have been denied regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).
“In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted” ( Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 961, 890 N.Y.S.2d 82; see Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050). Here, the Supreme Court improvidently exercised its discretion in denying the plaintiffs' cross motion pursuant to CPLR 3217(b), in effect, to voluntarily discontinue the action insofar as commenced on behalf of the infant plaintiff because there was no showing that the defendant would be prejudiced by such discontinuance ( see Expedite Video Conferencing Servs., Inc. v. Botello, 67 A.D.3d 961, 890 N.Y.S.2d 82; Parraguirre v. 27th St. Holding, LLC, 37 A.D.3d 793, 794, 831 N.Y.S.2d 460; Citibank v. Nagrotsky, 239 A.D.2d 456, 658 N.Y.S.2d 966).
The plaintiffs' second motion, denominated as one for leave to renew and reargue, did not offer any new facts not offered in opposition to the defendant's motion or in support of their prior cross motion for voluntary discontinuance. Therefore, this motion was, in actuality, one for leave to reargue, the denial of which is not appealable ( see CPLR 2221[d][2], [e] [2]; Petrosillo v. Town of Huntington, 73 A.D.3d 1146, 1147, 901 N.Y.S.2d 692). Accordingly, we dismiss the defendant's appeal from the order entered September 14, 2010.