McGirr v. Zurbrick

• Citation: 2023 NY Slip Op 03568
• Docket Number: 87 CA 22-00485
• Decision Date: 30 June 2023
• Parties: JASON J. MCGIRR, PLAINTIFF-APPELLANT, v. JUSTIN ZURBRICK, DEFENDANT, AND CANALSIDE HARBOR 2013, LLC, DEFENDANT-RESPONDENT. (APPEAL NO. 2.)
• Court: New York Supreme Court Appellate Division

2023 NY Slip Op 03568

JASON J. MCGIRR, PLAINTIFF-APPELLANT,
v.
JUSTIN ZURBRICK, DEFENDANT, AND CANALSIDE HARBOR 2013, LLC, DEFENDANT-RESPONDENT. (APPEAL NO. 2.)

No. 87 CA 22-00485

Supreme Court of New York, Fourth Department

June 30, 2023

LAW OFFICES OF STEVE BOYD, P.C., BUFFALO (LEAH A. COSTANZO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (NOLAN M. HALE OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: SMITH, J.P., CURRAN, BANNISTER, AND OGDEN, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Daniel Furlong, J.), entered February 2, 2022. The judgment dismissed the second amended complaint against defendant Canalside Harbor 2013, LLC.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle he was in was rear-ended by a vehicle driven by defendant Justin Zurbrick, who had worked as a bartender that evening at a restaurant owned and operated by Canalside Harbor 2013, LLC (defendant). As relevant here, plaintiff asserted causes of action against defendant based on claims of violation of the Dram Shop Act and negligent supervision. Defendant moved for summary judgment dismissing the second amended complaint against it, and Supreme Court granted the motion except with respect to the claim for violation of the Dram Shop Act.

Prior to trial, plaintiff served a notice for discovery and inspection and requested, inter alia, a copy of payroll records to enable plaintiff to identify employees who were working the evening of the incident. After having requested the information on two occasions, plaintiff moved pursuant to CPLR 3126 for sanctions based on defendant's failure to comply and requested an adverse inference charge. In response to the motion, defendant produced Zurbrick's timecard. In reply, plaintiff asserted that defendant's failure to comply was willful and sought to have the court sanction defendant by striking its answer to the second amended complaint (answer) or by rendering a liability determination in plaintiff's favor. The court granted the motion to the extent of sanctioning defendant $1,000 and directed defendant to search for and produce timecards and payroll records for all employees working on the night of the incident. The court further ordered that if additional records were found that had not already been produced, defendant may be subject to additional sanctions upon a motion by plaintiff. The court denied plaintiff's motion insofar as it sought an adverse inference charge, the striking of defendant's answer, or a determination of liability. Defendant subsequently produced the timecards of additional employees who worked the evening of the incident, and plaintiff cross-moved for leave to renew and reargue his motion for sanctions. The court, inter alia, denied plaintiff's cross-motion and the case proceeded to a jury trial.

In appeal No. 1, plaintiff appeals from that order insofar as it denied his cross-motion for leave to renew and reargue. In appeal No. 2, plaintiff appeals from a judgment dismissing the second amended complaint against defendant upon a jury verdict in favor of defendant.

Initially, we agree with defendant that the appeal from the order in appeal No. 1 insofar as it denied that part of plaintiff's cross-motion seeking leave to reargue must be dismissed because no appeal lies therefrom (see MidFirst Bank v Storto, 121 A.D.3d 1575, 1575 [4th Dept 2014]; Empire Ins. Co. v Food City, 167 A.D.2d 983, 984 [4th Dept 1990]). Contrary to defendant's contentions, however, the cross-motion also sought leave to renew and was supported by new, relevant facts, i.e., the timecards for the employees who worked at the restaurant the evening of the incident (see generally CPLR 2221[d] [1]; [e] [1]). Nevertheless, we further conclude that the appeal from the order insofar as it denied that part of plaintiff's cross-motion seeking leave to renew must be dismissed because the right to appeal from that intermediate order terminated upon the entry of the judgment in appeal No. 2 (see Kim v II Yeon Kwon, 144 A.D.3d 754, 755 [2d Dept 2016]; Brown Bark II, L.P. v Weiss & Mahoney, Inc., 90 A.D.3d 963, 964 [2d Dept 2011]; see generally Matter of Aho, 39 N.Y.2d 241, 248 [1976]). Contrary to defendant's contention, however, the issue raised by plaintiff with respect to the order in appeal No. 1 may be considered upon the appeal from the judgment in appeal No. 2 (see Aho, 39 N.Y.2d at 248; Simon v Granite Bldg. 2, LLC, 170 A.D.3d 1227, 1229 [2d Dept 2019], lv denied 34 N.Y.3d 904 [2019]; see also CPLR 5501 [a] [1]). That part of the order in appeal No. 1 denying that part of plaintiff's cross-motion for leave to renew "necessarily affect[ed]" the final judgment (CPLR 5501 [a] [1]) inasmuch as reversing that part of the order and granting plaintiff's motion for sanctions insofar as it sought the striking of defendant's answer or a determination of liability in plaintiff's favor "would inescapably have led to a vacatur of the judgment" (Bonczar v American Multi-Cinema, Inc., 38 N.Y.3d 1023, 1025 [2022], rearg denied 38 N.Y.3d 1170 [2022] [internal quotation marks omitted]; see Aho, 39 N.Y.2d at 248; Stanescu v Stanescu, 206 A.D.3d 1031, 1033-1034 [2d Dept 2022]).

With respect to plaintiff's contention that the court should have granted that part of the cross-motion seeking leave to renew and struck defendant's answer or rendered a liability determination in favor of plaintiff based on defendant's discovery violation, we reject defendant's assertion that plaintiff was not aggrieved by the court's August 2021 order on plaintiff's initial motion for sanctions and that he was thus precluded from cross-moving for leave to renew that motion. Plaintiff's motion initially sought an adverse inference charge for the missing timecards. When defendant produced Zurbrick's timecard in response to the motion-after previously representing that the timecard was missing or had been destroyed-plaintiff sought to have the court sanction defendant for the discovery violation by striking defendant's answer or rendering a liability determination in plaintiff's favor. Contrary to defendant's assertion, it was proper for plaintiff to raise that new request for sanctions in his reply papers inasmuch as the request was made in direct response to defendant's production of Zurbrick's timecard, for which an adverse inference charge would no longer be appropriate (see Studer v Newpointe Estates Condominium, 152 A.D.3d 555, 557 [2d Dept 2017]; see generally Mikulski v Battaglia, 112 A.D.3d 1355, 1356 [4th Dept 2013]). In the August 2021 order, the court sanctioned defendant $1,000 but otherwise denied the motion. We conclude that plaintiff was aggrieved by the August 2021 order because...