Montes v. 660 Park Ave. Corp.

Full title: RAMON MONTES, Plaintiff, v. 660 PARK AVENUE CORPORATION, NOVA CONSTRUCTION…

Court: Supreme Court, New York County

Date published: Jul 11, 2022

2022 N.Y. Slip Op. 32236 (N.Y. Sup. Ct. 2022)

Opinion

Index Nos. 156522/2017 595298/2018 595321/2019 MOTION SEQ. No. 003 & 004

07-11-2022

RAMON MONTES, Plaintiff, v. 660 PARK AVENUE CORPORATION, NOVA CONSTRUCTION SERVICES LLC, Defendants. 660 PARK AVENUE CORPORATION, Plaintiff, v. NOVA CONSTRUCTION SERVICES LLC, NOVA RESTORATION LLC, Defendants. NOVA CONSTRUCTION SERVICES LLC, Plaintiff, v. AKIN INC., Defendant.

PHILLIP HOM, J.S.C.

Unpublished Opinion

MOTION DATE11/30/2021, 12/14/2021 ¹

1 These motions were transferred to this Part in an order dated June 27, 2022 (Sattler, J.).

DECISION + ORDER ON MOTION

PHILLIP HOM, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 144 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 145 were read on this motion to/for REARGUMENT/RECONSIDERATION.

I now sit in Queens County, but I am considering these motions because they seek to reargue and/or renew arguments on a decision I issued while sitting in New York County last year. In the interest of justice and judicial economy, Motion Seq. Nos. 3 and 4 are considered together for the purpose of a decision.

Upon the foregoing documents, it is ORDERED that Motion Seq. No. 3 by Plaintiff Ramon Montes ("Montes") for an order granting leave to reargue the Court's October 27, 2021 Order (the "October 27, 2021 Order") (NYSCEF # 103 and 104) denying his motion for a protective order and to vacate a pre-surgery examination and denying Defendant Nova Construction Services, LLC's ("Nova") cross-motion for a pre-surgical physical examination is denied.

It is further ORDERED that Motion Seq. No. 4 by Montes for an order granting leave to renew his arguments on the October 27, 2021 Order is granted and upon renewal the Court vacates the October 27, 2021 Order.

Reargument

Initially, Nova argues that Montes' motion to reargue should not be considered because it was filed more than 30 days after the October 27, 2021 Order (see CPLR 2221[d] [3]). Because this motion was only two days late, filed on November 29, 2021 (right after the Thanksgiving Holiday), the lack of prejudice to Nova, and the strong public policy in New York to determine issues on their merits, the Court exercises its discretion under CPLR 2004 to waive the deadline and hear this motion.

A motion for reargument allows a party to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion (see CPLR 2221[d] [2]; Kats v Agosto, 203 A.D.3d 661, 661 [1^st Dept 2022]; Empire LLC v Sharapov, 192 A.D.3d 417, 417 [1^st Dept 2021]; William P. Pahl Equipment Corp. v Kassis, 182 A.D.2d 22, 27 [1^st Dept 1992]; Foley v Roche, 68 A.D.2d 558, 567 [1^st Dept 1979]). Its purpose is not to allow the unsuccessful party to argue again the very questions previously decided or to present arguments different from those originally presented (see People v D'Alessandro, 13 N.Y.3d 216, 219 [2009]; William P. Pahl Equipment Corp., 182 A.D.2d at 27; Foley, 68 A.D.2d at 568).

Under the mootness doctrine, courts are precluded from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances (see Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714 [1980]; Matter of Matter of Liu v Ruiz, 200 A.D.3d 68, 72 [1^stDept 2021]).

Montes argues that the Court should have conducted a CPLR 3103 (b) analysis and suspended disclosure of the matter in dispute; however, it is unclear why a CPLR 3103 (b) analysis was necessary when all the issues under the motion were made moot by Montes undergoing surgery during the pendency of the motion and cross-motion. Although there are exceptions to the mootness doctrine, none of them apply in the present case. Thus, Montes fails to demonstrate that the Court overlooked or misapprehended the law or facts relevant to the original motion. Accordingly, Montes' motion for reargument is denied.

Renewal

Under CPLR 2221 (e), a party moving for leave to renew must show either new facts not offered on the prior determination or a change in the law that would change the prior determination and a reasonable justification for the failure to present such facts on the prior motion (see Kreisler v B-U Realty Corp., 198 A.D.3d 568, 568 [1^st Dept 2021]; Ramos v City of New York, 61 A.D.3d 51, 54 [1^st Dept 2009]).

After the issuance of the October 27, 2021 Order, the Appellate Division, First Department, in Gilliam v. Uni Holdings, issued a decision on December 7, 2021, holding that a body part is not the type of physical evidence subject to a spoliation analysis because "[t]o so hold would improperly subject a plaintiffs health condition to an unsuitable legal analysis" (201 A.D.3d 83, 86 [1^st Dept 2021]). Instead, the First Department held that trial courts should use the same analysis applying to court-ordered discovery (id). The First Department further held that, like here, the defendant in Gilliam was not prejudiced by the plaintiff s medical treatment, which involved surgery on a body part at issue, because the defendant could rely upon the plaintiffs pre-surgical and post-surgical records (id. at 87).

In accordance with Gilliam, the Court, upon renewal, vacates the holding in its October 27, 2021 Order that an adverse inference be made against Montes. Montes has not violated any prior orders to submit to a pre-surgery examination and therefore an adverse inference is not warranted. As discussed in Gilliam, Nova is not prejudiced because it can request Montes' pre-surgical and post-surgical records to assess the condition of his neck.

Conclusion

In accordance with the foregoing, it is ORDERED Motion Seq. No. 3 for an order granting reargument is denied; and it is further

ORDERED that Motion Seq. No. 4 for an order granting renewal is granted, and that, upon renewal, the Court's October 27, 2021 Order granting an adverse inference jury instruction against Montes for spoliation is vacated.