Opinion
2017–03369 Index No. 500885/14
06-19-2019
Sabrina WILLIAMS, Appellant, v. ABIOMED, INC., Respondent, et al., Defendants.
Law Offices of Joseph M. Lichtenstein, P.C., Mineola, N.Y. (Theodore McKinley Thornton of counsel), for appellant. Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala and Kimberly Ricciardi of counsel), for respondent.
Law Offices of Joseph M. Lichtenstein, P.C., Mineola, N.Y. (Theodore McKinley Thornton of counsel), for appellant.
Gallo, Vitucci & Klar, New York, N.Y. (Yolanda L. Ayala and Kimberly Ricciardi of counsel), for respondent.
RUTH C. BALKIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries based on products liability and medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), entered March 9, 2017. The order granted the motion of the defendant Abiomed, Inc., for leave to reargue that branch of its prior motion which was, in effect, for a protective order, which had been denied in an order of the same court dated October 28, 2016 (Laura L. Jacobson, J.), and, upon reargument, in effect, vacated that portion of the order dated October 28, 2016, and, thereupon, granted that branch of the prior motion.
ORDERED that the order entered March 9, 2017, is reversed, on the law, on the facts, and in the exercise of discretion, with costs, the motion of the defendant Abiomed, Inc., for leave to reargue is denied, and so much of the order dated October 28, 2016, as denied that branch of the prior motion of the defendant Abiomed, Inc., which was, in effect, for a protective order, is reinstated.
The plaintiff commenced this action alleging, among other things, that she sustained personal injuries in July 2013, while undergoing treatment using a medical device that was defectively designed and manufactured by the defendant Abiomed, Inc. (hereinafter Abiomed). Prior to producing its witness for a deposition, Abiomed moved, inter alia, in effect, for a protective order "regarding the dissemination and production of intellectual property belonging to ... Abiomed." In an order dated October 28, 2016, the Supreme Court denied that branch of Abiomed's motion.
Thereafter, Abiomed moved for leave to reargue that branch of its prior motion which was, in effect, for a protective order. In an order entered March 9, 2017, the Supreme Court granted Abiomed's motion and, upon reargument, in effect, vacated so much of the order dated October 28, 2016, as denied that branch of Abiomed's prior motion which was, in effect, for a protective order and, thereupon, granted that branch of the prior motion. The plaintiff appeals.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" ( CPLR 2221[d][2] ). "While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided" ( Rodriguez v. Gutierrez, 138 A.D.3d 964, 967, 31 N.Y.S.3d 97 [internal quotation marks omitted]; see Ahmed v. Pannone, 116 A.D.3d 802, 805, 984 N.Y.S.2d 104 ).
Here, in support of its motion for leave to reargue, Abiomed merely sought to restate its earlier arguments rather than point out matters of fact or law allegedly overlooked or misapprehended (see Matter of Anthony J. Carter, DDS, P.C. v. Carter, 81 A.D.3d 819, 820, 916 N.Y.S.2d 821 ; Matter of Williams v. Board of Educ. of City School Dist. of City of N.Y., 24 A.D.3d 458, 459, 805 N.Y.S.2d 126 ). Further, the Supreme Court, in fact, did not overlook or misapprehend the facts or law, or mistakenly arrive at its earlier determination denying that branch of Abiomed's prior motion which was, in effect, for a protective order (see Rodriguez v. Gutierrez, 138 A.D.3d at 967, 31 N.Y.S.3d 97 ; Matter of Williams v. Board of Educ. of City School Dist. of City of N.Y., 24 A.D.3d at 459, 805 N.Y.S.2d 126 ). Abiomed failed to make a minimal showing that the discovery sought contained trade secrets or was otherwise subject to abuse if widely disseminated (see Linderman v. Pennsylvania Bldg. Co., 289 A.D.2d 77, 78, 734 N.Y.S.2d 67 ; Bristol, Litynski, Wojcik, P.C. v. Town of Queensbury, 166 A.D.2d 772, 773–774, 562 N.Y.S.2d 976 ; cf. Matter of New York City Asbestos Litig., 133 A.D.3d 463, 464, 20 N.Y.S.3d 27 ; Jackson v. Dow Chem. Co., 214 A.D.2d 827, 827–828, 624 N.Y.S.2d 675 ; McLaughlin v. G.D. Searle, Inc., 38 A.D.2d 810, 811, 328 N.Y.S.2d 899 ). We also note that there must be a basis for reargument other than a case being transferred to a new Justice.
Accordingly, Abiomed's motion for leave to reargue should have been denied.
BALKIN, J.P., ROMAN, MILLER and CHRISTOPHER, JJ., concur.