| Blackwell v Mikevin Mgt. III, LLC |
| 2011 NY Slip Op 07389 [88 AD3d 836] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Fatima Blackwell et al., Appellants, v MikevinManagement III, LLC, Respondent. |
—[*1] Gannon, Lawrence & Rosenfarb, New York, N.Y. (Peter J. Gannon of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an orderof the Supreme Court, Westchester County (Lefkowitz, J.), entered June 29, 2010, which grantedthe defendant's motion, in effect, for summary judgment dismissing the complaint insofar asasserted on behalf of the plaintiff Talajah Ellison, and denied their cross motion pursuant toCPLR 3217 (b), in effect, to voluntarily discontinue the action without prejudice insofar ascommenced on behalf of the plaintiff Talajah Ellison, and (2) an order of the same court enteredSeptember 14, 2010, which denied their motion, denominated as one for leave to renew andreargue, but which was, in actuality, one for leave to reargue.
Ordered that the appeal from the order entered September 14, 2010, is dismissed, as noappeal lies from an order denying leave to reargue; and it is further,
Ordered that the order entered June 29, 2010, is reversed, on the law, on the facts, and in theexercise of discretion, the defendant's motion, in effect, for summary judgment dismissing thecomplaint insofar as asserted on behalf of the plaintiff Talajah Ellison is denied, and theplaintiffs' cross motion pursuant to CPLR 3217 (b), in effect, to voluntarily discontinue the actionwithout prejudice insofar as commenced on behalf of the plaintiff Talajah Ellison is granted; andit is further,
Ordered that one bill of costs is awarded to the plaintiffs.
While in the kitchen of her rental apartment in Yonkers, the plaintiff Fatima Blackwell(hereinafter the plaintiff), then nine months pregnant with the infant plaintiff, Talajah Ellison(hereinafter the infant plaintiff), allegedly was injured when she was struck in the head by piecesof falling ceiling plaster. Six weeks after birth, the infant plaintiff began to experience seizures.
The plaintiff commenced this action on her own behalf and on behalf of the infant plaintiffseeking to recover damages for her personal injuries and those of the infant plaintiff. Followingjoinder of issue and the completion of some discovery, but prior to depositions being [*2]conducted, the parties settled the plaintiff's claims for her ownpersonal injuries. Thereafter, the defendant moved, in effect, for summary judgment dismissingthe complaint insofar as asserted on behalf of the infant plaintiff, alleging that there was no proofthat the infant plaintiff's seizures had been caused by the falling ceiling plaster striking theplaintiff while the infant plaintiff was in utero. The plaintiffs cross-moved pursuant to CPLR3217 (b), in effect, to voluntarily discontinue the action without prejudice insofar as commencedon behalf of the infant plaintiff. The Supreme Court granted the defendant's motion and deniedthe plaintiffs' cross motion. We reverse.
As the party seeking summary judgment, the defendant had the burden of demonstrating itsentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Here, not only were the submitted medical records not in admissible form because theywere not certified or authenticated (see CPLR 4518 [c]; Banfield v New York City Tr. Auth.,36 AD3d 732 [2007]; Baez v Sugrue, 300 AD2d 519 [2002]), but also, the defendantdid nothing more than point to gaps in the plaintiffs' case in its efforts to meet its prima facieburden. A movant fails to satisfy its prima facie burden by merely pointing out gaps in theplaintiff's case (see Englington Med.,P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223 [2011]; Shafi v Motta, 73 AD3d 729, 730[2010]; Doe v Orange-Ulster Bd. ofCoop. Educ. Servs., 4 AD3d 387, 388 [2004]). Since the defendant failed to make aprima facie showing of its entitlement to judgment as a matter of law, its motion should havebeen denied regardless of the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851 [1985]).
"In the absence of special circumstances, such as prejudice to a substantial right of thedefendant, or other improper consequences, a motion for a voluntary discontinuance should begranted" (Expedite Video ConferencingServs., Inc. v Botello, 67 AD3d 961 [2009]; see Tucker v Tucker, 55 NY2d 378,383 [1982]). Here, the Supreme Court improvidently exercised its discretion in denying theplaintiffs' cross motion pursuant to CPLR 3217 (b), in effect, to voluntarily discontinue the actioninsofar as commenced on behalf of the infant plaintiff because there was no showing that thedefendant would be prejudiced by such discontinuance (see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d961 [2009]; Parraguirre v 27th St.Holding, LLC, 37 AD3d 793, 794 [2007]; Citibank v Nagrotsky, 239 AD2d 456[1997]).
The plaintiffs' second motion, denominated as one for leave to renew and reargue, did notoffer any new facts not offered in opposition to the defendant's motion or in support of their priorcross motion for voluntary discontinuance. Therefore, this motion was, in actuality, one for leaveto reargue, the denial of which is not appealable (see CPLR 2221 [d] [2]; [e] [2]; Petrosillo v Town of Huntington, 73AD3d 1146, 1147 [2010]). Accordingly, we dismiss the defendant's appeal from the orderentered September 14, 2010. Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.