Vitolo v. Suarez

• Decision Date: 01 July 2015
• Docket Number: 2014-08925, 2014-11249
• Citation: Vitolo v. Suarez, 2015 NY Slip Op 5666, 130 A.D.3d 610, 13 N.Y.S.3d 177 (N.Y. App. Div. 2015)
• Parties: Francesca VITOLO, appellant, v. Delvin Moses SUAREZ, respondent.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 610

13 N.Y.S.3d 177

2015 N.Y. Slip Op. 05666

Francesca VITOLO, appellant

v.Delvin Moses SUAREZ, respondent.

2014-08925, 2014-11249

Supreme Court, Appellate Division, Second Department, New York.

July 1, 2015.

Albert Zafonte, Jr. (Richard Paul Stone, New York, N.Y., of counsel), for appellant.

Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola and Jerry Ferrara], of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Greco, Jr., J.), entered July 29, 2013, which granted the defendant's motion for summary judgment dismissing the complaint based upon the plaintiff's failure to serve a bill of particulars as directed by a conditional order of preclusion dated November 28, 2012, and (2) an order of the same court entered February 13, 2014, which denied her motion, in effect, for leave to reargue her opposition to the defendant's motion or, in the alternative, pursuant to CPLR 5015(a)(1), in effect, to vacate her default in complying with the conditional order of preclusion dated November 28, 2012.

ORDERED that the order entered July 29, 2013, is affirmed; and it is further,

ORDERED that the appeal from so much of the order entered February 13, 2014, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered February 13, 2014, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

On July 30, 2010, the plaintiff allegedly was injured when the vehicle she was operating was struck by the defendant's vehicle on Broadway at or near the intersection of 55th Street in Queens. The plaintiff commenced this action in July 2011. Issue was joined in December 2011. In a preliminary conference order dated May 21, 2012, the Supreme Court, inter alia, directed the plaintiff to serve a bill of particulars on or before June 21, 2012. In February and August 2012, the defendant's counsel sent letters to the plaintiff's counsel noting that the plaintiff had not yet served a bill of particulars or responded to any discovery demands. In a written stipulation dated November 8, 2012, the defendant withdrew a previous motion to compel compliance with discovery and, in exchange therefor, the plaintiff promised to serve her bill of particulars by December 10, 2012. In a compliance conference order dated November 28, 2012, the Supreme Court directed that the plaintiff serve a bill of particulars “within 30 days or shall be precluded from offering evidence regarding damages at the time of trial.” The plaintiff failed to serve the bill of particulars by the deadline set in the November 28, 2012, order. The defendant moved pursuant to CPLR 3212 and 3126 for summary judgment dismissing the complaint, based upon the plaintiff's failure to comply with the November 28, 2012, order. In an order entered July 29, 2013, the Supreme Court granted the motion. In September 2013, the plaintiff moved pursuant to CPLR 2221(d), in effect, for leave to reargue her opposition to the defendant's motion or, alternatively, pursuant to CPLR 5015(a)(1) to vacate her default in complying with the November 28, 2012, order. In an order entered February 13, 2014, the Supreme Court denied the motion.

The order dated November 28, 2012, contained a directive conditionally precluding the plaintiff from offering evidence of damages at trial unless she served a bill of particulars within 30 days of the order. It is undisputed that the plaintiff failed to serve a bill of particulars by the court-imposed deadline. Therefore, the conditional order became absolute, precluding the plaintiff from offering evidence of damages at trial (see Keenan v. Fiorentino, 84 A.D.3d 740, 921 N.Y.S.2d 874 ). To be relieved of the adverse impact of the conditional order of preclusion, the plaintiff was required to demonstrate a reasonable excuse for her...