Fortino v. Wheels, Inc.
| Decision Date | 13 April 2022 |
| Docket Number | 2019–09453,Index No. 707150/18 |
| Citation | 204 A.D.3d 756,166 N.Y.S.3d 660 |
| Parties | Arcos Campos FORTINO, appellant, v. WHEELS, INC., et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Wingate, Russotti, Shapiro & Halperin, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Roya Namvar, and Jillian Rosen ], of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York, NY (Paul M. Tarr of counsel), for respondents Wheels, Inc., and Shameza Dowd.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum ], of counsel), for respondent Gerald Schneider.
ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered August 5, 2019. The order granted the separate motions of the defendants Wheels, Inc., and Shameza Dowd, and the defendant Gerald Schneider, in effect, to enforce a conditional order of preclusion of the same court (Joseph J. Esposito, J.) dated February 27, 2019, and, thereupon, for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order entered August 5, 2019, is reversed, on the facts and in the exercise of discretion, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the separate motions of the defendants Wheels, Inc., and Shameza Dowd, and the defendant Gerald Schneider, in effect, to enforce the conditional order of preclusion dated February 27, 2019, and, thereupon, for summary judgment dismissing the complaint insofar as asserted against each of them are denied.
In May 2018, the plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in two separate accidents, one involving a vehicle owned by the defendant Wheels, Inc., and operated by the defendant Shameza Dowd (hereinafter together the Wheels defendants), and the other involving a vehicle owned and operated by the defendant Gerald Schneider. The Wheels defendants and Schneider separately answered the complaint and served demands for bills of particulars and notices for discovery and inspection.
Pursuant to a preliminary conference order dated September 11, 2018, the plaintiff was directed to provide bills of particulars and to respond to the defendants’ discovery demands within 30 days. The plaintiff failed to comply with the preliminary conference order, and on January 2, 2019, the attorney for the Wheels defendants provided discovery to the plaintiff with a cover letter requesting that the plaintiff respond to their demand for a bill of particulars and notice for discovery and inspection.
Pursuant to a conditional order of preclusion dated February 27, 2019 (hereinafter the conditional order), the plaintiff was directed to comply with the preliminary conference order within 30 days, under threat of preclusion. The plaintiff did not comply with the conditional order, and in April 2019, the Wheels defendants and Schneider separately moved, in effect, to enforce the conditional order and, thereupon, for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff opposed the motions, submitting an affirmation of counsel in which it was contended that the failure to comply with the conditional order was the result of law office failure, and an affidavit of the plaintiff asserting that he had meritorious causes of action against the defendants. The Supreme Court granted the defendants’ motions, and the plaintiff appeals.
A conditional order of preclusion requires a party to provide specified discovery by a date certain or face the sanctions specified in the order (see e.g. Torres v. Dayton Hudson Corp., 171 A.D.3d 827, 828, 95 N.Y.S.3d 830 ). "Where a party fails to comply with the terms of a conditional order prior to the deadline imposed therein, the conditional order becomes absolute" ( Goldberg v. Breth, 189 A.D.3d 1368, 1370, 134 N.Y.S.3d 804 ; see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830, 860 N.Y.S.2d 417, 890 N.E.2d 179 ). To successfully oppose a motion to enforce a conditional...
To continue reading
Request your trial
-
Siradze v. AVB 1865 Broadway, LLC
...requires a party to provide specified discovery by a date certain or face the sanctions specified in the order (see Fortino v. Wheels, Inc., 204 A.D.3d 756, 166 N.Y.S.3d 660 ; Torres v. Dayton Hudson Corp., 171 A.D.3d 827, 828, 95 N.Y.S.3d 830 ). " ‘With this conditioning, the court relieve......
-
Deutsche Bank Nat'l Trust Co. v. Loayza
... ... Mellon v. Porfert, 187 A.D.3d 1110, 1112, 134 N.Y.S.3d 57 ; Citimortgage, Inc. v. Banks, 155 A.D.3d 936, 936937, 64 N.Y.S.3d 121 ), "and the plaintiff has the burden of ... ...
-
Delric Constr. Co. v. N.Y.C. Sch. Constr. Auth.
...require a complete plaster coat.Thus, the materials submitted by the defendant did not warrant dismissal under CPLR 3211(a)(1) (cf. 166 N.Y.S.3d 660 Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 144 A.D.3d at 716–717, 41 N.Y.S.3d 101 ). And, given the various ambiguities in the ......
-
C Castle Grp. Corp. v. Herzfeld & Rubin, P.C.
...claim or defense" ( Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 ; see Fortino v. Wheels, Inc., 204 A.D.3d 756, 757–758, 166 N.Y.S.3d 660 ). "The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion" ( Burro v. Ka......