| Princeton Ins. Co. v Jenny Exhaust Sys., Inc. |
| 2008 NY Slip Op 01934 [49 AD3d 518] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Princeton Insurance Company, as Subrogee of My Roula, Inc., T/AMike's Place, Respondent, v Jenny Exhaust Systems, Inc., Appellant, and Kidde FireSystems et al., Respondents, et al., Defendants. |
—[*1] Kopff, Nardelli & Dopf LLP, New York, N.Y. (Martin B. Adams of counsel), forplaintiff-respondent. Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Jr., Peter James Johnson,James P. Tenney, and Joanne Filiberti of counsel), for defendants-respondents.
In a subrogation action to recover damages for injury to property, the defendant JennyExhaust Systems, Inc., appeals from an order of the Supreme Court, Queens County (Schulman,J.), entered October 10, 2006, which denied, as premature, its motion for leave to renew its priormotion to strike the complaint and all cross claims insofar as asserted against it pursuant toCPLR 3126 based on spoliation of evidence, which had also been denied as premature in anorder of the same court entered August 9, 2005.
Ordered that the order entered October 10, 2006, is affirmed, with one bill of costs.
This subrogation action arises out of a fire that occurred on March 4, 2001, at a restaurant inStaten Island. The plaintiff insurer claims, inter alia, that exhaust maintenance work performedby the defendant Jenny Exhaust Systems, Inc. (hereinafter Jenny), caused or contributed to thefire.
Prior to the completion of disclosure, Jenny moved pursuant to CPLR 3126 to strike thecomplaint insofar as asserted against it on the ground of spoliation of evidence. By order entered[*2]August 9, 2005, the Supreme Court denied the motion"without prejudice to defendants, if they be so advised, seeking sanctions upon proper papersfollowing the completion of disclosure or at the trial of this matter." Although Jenny appealedfrom the order entered August 9, 2005, that appeal was dismissed by this Court for lack ofprosecution.
Prior to the completion of discovery, but after receiving photographs of the scene of the fire,Jenny moved for leave to renew the motion to strike the complaint. The Supreme Court, afternoting that the "defendants were specifically granted leave to raise the spoliation issue aftercompletion of disclosure or at the trial of this matter" (emphasis added), denied the motionas premature. We affirm.
At the outset, inasmuch as Jenny attempts to bring up for review certain matters that were, orcould have been, raised on its earlier appeal from the order entered August 9, 2005, such mattersare not properly before us (see Bray v Cox, 38 NY2d 350 [1976]; Reshevsky v United Water N.Y., Inc.,46 AD3d 532 [2007]), and we decline to reach them in the exercise of our discretion(see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]).
With respect to issues that could not have been raised on the prior appeal, in light of theexpress terms of the order entered August 9, 2005, the Supreme Court properly denied aspremature Jenny's motion for leave to renew. Rather than accepting the court's invitation torenew its motion only upon completion of discovery, Jenny elected instead to move before evenproducing a witness for a deposition. Moreover, Jenny failed to demonstrate a reasonablejustification for its failure to have proffered, in support of its original motion, the alleged newfacts presented in support of its motion for leave to renew (see CPLR 2221 [e] [3]; Madison v Tahir, 45 AD3d 744[2007]). Accordingly, the motion was properly denied in any event.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Skelos, J.P., Fisher, Covello and Eng, JJ., concur.