Opinion
2013-12-18
Macit OKUMUS, respondent, v. The LIVING ROOM STEAK HOUSE, INC., doing business as The Living Room Steak House and Lounge, appellant.
Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (J. McGarry Costello of counsel), for appellant. Van Leer & Greenberg, New York, N.Y. (Howard B. Greenberg and Evan Van Leer–Greenberg of counsel), for respondent.
Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (J. McGarry Costello of counsel), for appellant. Van Leer & Greenberg, New York, N.Y. (Howard B. Greenberg and Evan Van Leer–Greenberg of counsel), for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, the defendant appeals (1) from an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 27, 2012, which denied its motion to vacate a so-ordered stipulation dated December 13, 2011, and (2), as limited by its brief, from so much of an order of the same court dated September 7, 2012, as denied that branch of its motion which was for leave to renew.
ORDERED that the order dated April 27, 2012, is affirmed; and it is further,
ORDERED that the order dated September 7, 2012, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The Supreme Court providently exercised its discretion in denying the defendant's motion to vacate a so-ordered stipulation dated December 13, 2011 (hereinafter the stipulation), precluding the defendant from offering evidence as to liability at trial if it did not schedule depositions by a date certain. The stipulation, signed by counsel for each party in this action during a court appearance, is a binding contract ( seeCPLR 2104; Kirkland v. Fayne, 78 A.D.3d 660, 915 N.Y.S.2d 270; Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 A.D.3d 706, 830 N.Y.S.2d 662; Aivaliotis v. Continental Broker–Dealer Corp., 30 A.D.3d 446, 447, 817 N.Y.S.2d 365). While a court may relieve a party of the consequences of a stipulation made during litigation where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident ( see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Siltan v. City of New York, 300 A.D.2d 298, 750 N.Y.S.2d 323), here, the plaintiff failed to demonstrate good cause sufficient to invalidate the stipulation ( see Kirkland v. Fayne, 78 A.D.3d at 660, 915 N.Y.S.2d 270; Utica Mut. Ins. Co. v. Swim Tech Pool Servs., Inc., 37 A.D.3d at 706, 830 N.Y.S.2d 662).
To the extent that the defendant sought to vacate its default in complying with the stipulation, it failed to make the requisite showing. The stipulation functioned as a conditional order of preclusion, which became absolute upon the defendant's failure to comply ( see Kirkland v. Fayne, 78 A.D.3d at 660, 915 N.Y.S.2d 270; Siltan v. City of New York, 300 A.D.2d at 298, 750 N.Y.S.2d 323). To avoid the adverse impact of the stipulation, the defendant was required to demonstrate a reasonable excuse for its failure to comply and the existence of a potentially meritorious defense to the action ( see Kirkland v. Fayne, 78 A.D.3d at 661, 915 N.Y.S.2d 270; State Farm Mut. Auto. Ins. Co. v. Hertz Corp., 43 A.D.3d 907, 908, 841 N.Y.S.2d 617; Siltan v. City of New York, 300 A.D.2d at 298, 750 N.Y.S.2d 323). Here, in its moving papers, the defendant failed to offer a reasonable excuse for its failure to comply with the provision of the stipulation requiring it to schedule Sead Pejcinovic's deposition within 90 days of the stipulation, and failed to offer any potentially meritorious defense to the action.
“A motion for leave to renew is addressed to the sound discretion of the court” (Matheus v. Weiss, 20 A.D.3d 454, 454–455, 797 N.Y.S.2d 774). Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2] ) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]; see Bank of N.Y. Mellon v. Izmirligil, 88 A.D.3d 930, 932, 931 N.Y.S.2d 667; Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 437, 840 N.Y.S.2d 817). “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Worrell v. Parkway Estates, 43 A.D.3d at 437, 840 N.Y.S.2d 817; see Sobin v. Tylutki, 59 A.D.3d 701, 702, 873 N.Y.S.2d 743; Renna v. Gullo, 19 A.D.3d 472, 473, 797 N.Y.S.2d 115). Here, the facts set forth in support of renewal were available to the defendant at the time it made its prior motion to vacate the stipulation, and it failed to demonstrate a reasonable justification for failing to submit such facts on the prior motion ( see Deutsche Bank Natl. Trust Co. v. Wilkins, 97 A.D.3d 527, 528–529, 948 N.Y.S.2d 341; Sobin v. Tylutki, 59 A.D.3d at 702, 873 N.Y.S.2d 743; Worrell v. Parkway Estates, LLC, 43 A.D.3d at 437, 840 N.Y.S.2d 817). Accordingly, renewal was properly denied.