Opinion
02-08-2024
Shane CRANDALL, Plaintiff–Appellant, v. EQUINOX HOLDINGS, INC., doing business as Equinox Fitness Club etc., et al., Defendants–Respondents.
Held & Hines, LLP, Brooklyn (Uri Nazryan of counsel), for appellant. LaRocca Hornik Rosen & Greenberg LLP, New York (David N. Kittredge of counsel), for respondents.
Held & Hines, LLP, Brooklyn (Uri Nazryan of counsel), for appellant.
LaRocca Hornik Rosen & Greenberg LLP, New York (David N. Kittredge of counsel), for respondents.
Oing, J.P., González, Shulman, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered December 8, 2022, which denied plaintiff’s motion to vacate a prior order, same court and Justice, dated September 22, 2022, precluding plaintiff from taking defendants’ depositions and requiring the parties to file a note of issue by October 31, 2022, denied plaintiff’s motion to vacate the note of issue, and granted defendants’ motion to quash four nonparty subpoenas, unanimously affirmed, with costs.
[1] Plaintiff’s appeal is not moot because Supreme Court subsequently granted defendants’ motion for summary judgment dismissing the complaint, as plaintiff has appealed from that order. However, because the appeal has not yet been perfected, the issue of whether the court correctly awarded summary judgment is not properly before this Court. [2] Plaintiff failed to demonstrate that the court improvidently exercised its discretion by denying his motion to vacate its September 2022 order precluding plaintiff from deposing defendants (see IO Experience Design LLC v. C & A Mktg., Inc., 220 A.D.3d 444, 444–445, 197 N.Y.S.3d 197 [1st Dept. 2023]; Langomas v. City of New York, 198 A.D.3d 534, 535, 152 N.Y.S.3d 802 [1st Dept. 2021]). Plaintiff failed to identify any error in the court’s reasoning or offer a valid excuse for failing to comply with the court-ordered deadline (see Gibbs v. St Barnabas Hosp., 16 N.Y.3d 74, 81, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010]; Youwanes v. Steinbrech, 193 A.D.3d 492, 492, 146 N.Y.S.3d 253 [1st Dept. 2021]). Plaintiff’s given excuse of law office failure based on assigned counsel’s family leave is unavailing because plaintiff’s firm’s failure to comply with the deadline was unrelated to the claimed law office failure; counsel simply did not comply and also did not seek an extension (see Goldberg v. Breth, 189 A.D.3d 1368, 1370, 134 N.Y.S.3d 804 [2d Dept. 2020]).
For the same reason, Supreme Court properly denied plaintiffs motion to extend the time to file or vacate the note of issue (see O’Berry v. Gelco Corp., 128 A.D.3d 597, 10 N.Y.S.3d 68 [1st Dept. 2015]).
[3] The court providently granted defendants’ motion to quash the nonparty subpoenas. In addition to the fact that the notices were filed after the court-ordered deadline, plaintiff admitted that the subpoenas sought discovery precluded by this Court in (Crandall v. Equinox Holdings, Inc., 206 A.D.3d 552, 168 N.Y.S.3d 834 [1st Dept. 2022]).