Opinion
2013-2180 Q C
12-02-2015
Jasmattie Ramlall, Appellant, v. JW Mays, Inc., Respondent, and Department of Motor Vehicles, Defendant.
PRESENT: :
Appeals from orders of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered August 6, 2013 and January 7, 2014, respectively. The order entered August 6, 2013 granted a motion by defendant JW Mays, Inc. for, in effect, summary judgment dismissing the complaint insofar as asserted against it. The order entered January 7, 2014 denied plaintiff's motion for leave to reargue and/or renew her opposition to defendant JW May's, Inc.'s prior motion.
ORDERED that the order entered August 6, 2013 is affirmed, without costs; and it is further,
ORDERED that so much of the appeal as is from the portion of the order entered January 7, 2014 that denied the branch of plaintiff's motion seeking reargument is dismissed; and it is further,
ORDERED that the order entered January 7, 2014, insofar as reviewed, is affirmed, without costs.
Plaintiff commenced this action to recover for injuries she allegedly sustained on December 5, 2011 when she slipped and fell on uneven flooring while leaving the Department of Motor Vehicles' premises located at 168-23 Jamaica Avenue, Queens, New York, a property owned by defendant JW Mays, Inc. (JW).
By so-ordered stipulation dated October 5, 2012, it was agreed that plaintiff would be precluded from testifying at trial unless she complied with JW's outstanding discovery demands within 30 days. When plaintiff failed to comply, JW moved for, in effect, summary judgment dismissing the complaint insofar as asserted against it. By order entered August 6, 2013, the Civil Court granted the motion. Plaintiff's motion for leave to reargue and/or renew her opposition to JW's prior motion was thereafter denied by order entered January 7, 2014. Plaintiff appeals from both orders.
When plaintiff failed to timely comply with the conditional order of preclusion, the order became absolute (see Barriga v Sapo, 250 AD2d 795 [1998]; Michaud v City of New York, 242 AD2d 369 [1997]). Inasmuch as plaintiff failed to demonstrate a reasonable excuse for her failure to timely comply with the discovery demands and the existence of a meritorious cause of action, she is precluded from testifying at trial and is unable to establish a prima facie case. Consequently, JW's summary judgment motion was properly granted ( see Barriga v Sapo, 250 AD2d 795; Ludwigsen v American Transp. Lines, 242 AD2d 523 [1997]; Cobble Hill Nursing Home v Griffo, 240 AD2d 459 [1997]; DiPietro v Duhl, 227 AD2d 515 [1996]).
The appeal from so much of the order entered January 7, 2014 as denied the branch of plaintiff's motion seeking leave to reargue her opposition to JW's summary judgment motion must be dismissed, as no appeal lies from an order denying a motion for leave to reargue (see Bermudez v City of New York, 66 AD3d 724 [2009]; Malik v Campbell, 289 AD2d 540 [2001]). In support of the branch of JW's motion seeking leave to renew, plaintiff needed to proffer either new facts which were unavailable at the time of the prior motion or a reasonable justification for the failure to have presented the facts on the prior motion (see CPLR 2221 [e]; Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883 [2010]). Plaintiff failed to do either. Under these circumstances, the Civil Court did not improvidently exercise its discretion in denying the branch of plaintiff's motion seeking leave to renew.
Accordingly, the order entered August 6, 2013, and the order entered January 7, 2014 insofar as reviewed, are affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: December 02, 2015