Opinion
2014-06-10
Milagros GARCIA, Plaintiff–Respondent, v. LA FORTUNA RESTAURANT, INC., et al., Defendants–Appellants, John Doe, et al., Defendants.
Rubin, Fiorella & Friedman, LLP, New York (Leila Cardo of counsel), for appellants. Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for respondent.
Rubin, Fiorella & Friedman, LLP, New York (Leila Cardo of counsel), for appellants. Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for respondent.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered April 8, 2013, which denied the motion of defendants La Fortuna Restaurant, Inc. and Raymond Portoreal for leave to renew the prior order, same court and Justice, entered December 20, 2011, granting plaintiff's motion to strike their answer, unanimously affirmed, without costs.
On a prior appeal, we affirmed the motion court's order striking defendants La Fortuna Restaurant and Portoreal's answer (102 A.D.3d 638, 958 N.Y.S.2d 594 [1st Dept.2013] ). The motion court properly determined that the transcript of Portoreal's partial deposition and his affidavit explaining the reason for his failure to appear for a continued deposition are not new facts that could not have been offered on the prior motion ( seeCPLR 2221[e][2] and [3] ). In any event, the alleged new facts, even if considered, would not have changed the prior determination ( seeCPLR 2221[e][2]; Burgess v. Charles H. Greenthal Mgt. Corp., 37 A.D.3d 151, 830 N.Y.S.2d 48 [1st Dept.2007] ). Indeed, Portoreal only attempts to excuse his failure to appear for a continued deposition on December 12, 2011, based upon a conflict which he had not reported to his attorneys, and does not address his earlier failures to appear in defiance of three court orders. TOM, J.P., FRIEDMAN, RENWICK, GISCHE, CLARK, JJ., concur.