| Bort v Perper |
| 2011 NY Slip Op 01610 [82 AD3d 692] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Stephen Bort, Appellant, v Yakov Perper, Respondents, etal., Defendants. |
—[*1]
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1),as limited by his brief, from so much of an order of the Supreme Court, Kings County(Rosenberg, J.), dated May 27, 2004, as directed him to file a note of issue on or beforeNovember 30, 2004, and to comply with a preliminary conference order of the same court(Steinhardt, J.), dated October 30, 2003, which, among other things, directed him to provide thedefendants with various authorizations, (2) from an order of the same court (Ruditzky, J.), datedDecember 20, 2006, which, in effect, directed him to move to restore the action pursuant toCPLR 3216 and provide an expert affirmation establishing a potentially meritorious cause ofaction within 60 days, (3), as limited by his brief, from so much an order of the same court(Steinhardt, J.), dated December 8, 2008, as denied those branches of his motion which were tovacate the dismissal of the action, to restore the action to active status, and to extend the time toserve and file a note of issue, and granted the cross motion of the defendants Yakov Perper andMaimonides Medical Center to dismiss the complaint pursuant to CPLR 3126 (3) for failure toobey a court order and pursuant to CPLR 3216 for failure to prosecute the action insofar asasserted against those defendants, (4) from a judgment of the same court (Steinhardt, J.), enteredFebruary 20, 2009, which, upon the order dated December 8, 2008, is in favor of the defendantsYakov Perper and Maimonides Medical Center and against him dismissing the complaint insofaras asserted against those defendants, and (5), as limited by his brief, from so much of an order ofthe same court (Steinhardt, J.), dated December 9, 2009, as denied those branches of his motionwhich were for leave to renew and reargue his prior motion, inter alia, to vacate the dismissal ofthe action, to restore the action to active status, and to extend the time to serve and file a note ofissue, and his opposition to the cross motion of the defendants Yakov Perper and MaimonidesMedical Center to dismiss the complaint pursuant to CPLR 3126 (3) for failure to obey a courtorder and pursuant to CPLR 3216 for failure to prosecute the action insofar as asserted againstthose defendants.
Ordered that the appeals from the orders dated May 27, 2004, December 20, 2006, andDecember 8, 2008, are dismissed; and it is further,[*2]
Ordered that the appeal from so much of the order datedDecember 9, 2009, as denied that branch of the plaintiff's motion which was for leave to reargueis dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order dated December 9, 2009, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.
The appeals from the orders dated May 27, 2004, and December 20, 2006, must bedismissed, since no appeal lies as of right from an order which does not decide a motion made onnotice (see CPLR 5701 [a] [2]), and we decline to grant leave to appeal in view of thefact that a final judgment has been entered (see generally Matter of Aho, 39 NY2d 241,248 [1976]). Additionally, the appeal from the order dated December 8, 2008, must be dismissedbecause the right of direct appeal therefrom terminated with the entry of judgment in the action(see Matter of Aho, 39 NY2d at 248). The issues raised on the appeals from those ordersare brought up for review and have been considered on the appeal from the judgment (CPLR5501 [a] [1]).
The order dated May 27, 2004, a compliance conference order, inter alia, directed theplaintiff to file a note of issue by November 30, 2004, and to provide certain discovery. Thatorder stated that the failure to file a note of issue would result in dismissal of the action, and thatthe failure to comply with the discovery provisions "may result in dismissal of the action." Asubsequent order of the Supreme Court, dated August 2, 2005, directed that a note of issue had tobe filed by February 7, 2006. That order contained language identical to that in the order datedMay 27, 2004, concerning the consequences of noncompliance. The plaintiff's counsel indicatedhis consent to both orders by signing his name on them. These two orders had "the same effect asa valid 90-day notice pursuant to CPLR 3216 " (Mahler v Torres, 25 AD3d 669, 670 [2006]; see Rocha-Silva v St. John's Hosp., 70AD3d 1025, 1025-1026 [2010]; Koscinski v St. Joseph's Med. Ctr., 24 AD3d 421 [2005]; Vinikour v Jamaica Hosp., 2 AD3d518, 519 [2003]).
The plaintiff failed to serve and file a note of issue by the dates certain, and did not move toextend the period to do so prior to the dates certain. He further failed to demonstrate a reasonableexcuse for the failure to timely file the note of issue or to timely move to extend the period to filea note of issue, and failed to demonstrate that he had a potentially meritorious cause of action(see Rocha-Silva v St. John's Hosp., 70 AD3d at 1026; Petersen v Lysaght, Lysaght & Kramer,P.C., 47 AD3d 783, 784 [2008]; Werbin v Locicero, 287 AD2d 617, 618[2001]). In addition, the plaintiff failed to fully comply with the orders of the Supreme Courtdirecting discovery. In particular, the record indicates that the plaintiff provided only six of therequired authorizations for medical information. The plaintiff's failure to comply hampered theability of the defendants Yakov Perper and Maimonides Medical Center (hereinafter together thedefendants) to meaningfully conduct depositions. Moreover, the plaintiff never moved to strikeall or part of the demands for authorizations or discovery, and did not timely object to thedemands (see Kroll v Parkway PlazaJoint Venture, 10 AD3d 633, 634 [2004]). Accordingly, the Supreme Court properlydismissed the action pursuant to CPLR 3216 insofar as asserted against the defendants (seePetersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d at 783; cf. Donegan v St. Joseph'sMed. Ctr., 283 AD2d 152, 153 [2001]).
In any event, based on the plaintiff's repeated refusal to fully comply with court ordersdirecting discovery, and the inadequate excuses for his failure to do so, which were willful andcontumacious, the Supreme Court correctly also dismissed the action pursuant to CPLR 3126 (3)insofar as asserted against the defendants (see Kyung Soo Kim v Goldmine Realty, Inc., 73 AD3d 709 [2010];Nunez v City of New York, 37AD3d 434, 434-435 [2007]; Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 643-644[2005]; Mendez v City of NewYork, 7 AD3d 766, 767 [2004]; Yona v Beth Israel Med. Ctr., 285 AD2d 460,461 [2001]).
The facts asserted by the plaintiff with respect to that branch of his motion which was forleave to renew were available to him at the time he originally moved, inter alia, to restore theaction, and would not have changed the prior determination. In addition, the plaintiff failed to[*3]provide a reasonable justification for not presenting suchfacts on the prior motion (seeDevelopment Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d628 [2010]; NYCTL 1999-1 Trust v114 Tenth Ave. Assoc., Inc., 44 AD3d 576, 577 [2007]; Veitsman v G & M Ambulette Serv.,Inc., 35 AD3d 848, 848-849 [2006]). Accordingly, the Supreme Court properly deniedthat branch of the plaintiff's motion which was for leave to renew.
The plaintiff's remaining contentions either need not be addressed in light of ourdetermination or are without merit. Skelos, J.P., Eng, Hall and Lott, JJ., concur.