| Aronov v Shimonov |
| 2013 NY Slip Op 02363 [105 AD3d 787] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Iosif Aronov, Respondent, v Aharon Shimonov etal., Appellants, et al., Defendant. |
—[*1] Stewart H. Friedman, Garden City, N.Y. (David A. Harrison of counsel), forappellant Aharon Shimonov. Elliot Ifraimoff & Associates, P.C., Forest Hills, N.Y. (Dmitriy Shulman of counsel),for respondent.
In an action to recover damages for personal injuries, (1) the defendant HersPasternak and the defendant Aharon Shimonov separately appeal, as limited by theirbriefs, from so much of an order of the Supreme Court, Queens County (Agate, J.),entered June 27, 2012, as conditionally granted that branch of the plaintiff's motionwhich was pursuant to CPLR 3126 to strike their separate answers unless they appearedfor depositions by a date certain, and (2) the defendant Hers Pasternak appeals from somuch of an order of the same court entered October 23, 2012, as denied that branch ofhis motion which was pursuant to CPLR 2221 (e) for leave to renew his opposition tothat branch of the plaintiff's prior motion which was to strike his answer, and thedefendant Aharon Shimonov separately appeals from so much of the same order asdenied his motion which was denominated as one for leave to renew and reargue, butwhich was, in actuality, a motion to vacate so much of the prior order entered June 27,2012, as conditionally granted that branch of the plaintiff's motion which was pursuant toCPLR 3126 to strike his answer, upon his failure to oppose that branch of the plaintiff'smotion.
Ordered that the appeal by the defendant Aharon Shimonov from so much of theorder entered June 27, 2012, as conditionally granted that branch of the plaintiff's motionwhich was pursuant to CPLR 3126 to strike his answer is dismissed; and it is further,
Ordered that the order entered June 27, 2012, is affirmed insofar as reviewed; and itis further,
Ordered that the order entered October 23, 2012, is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.[*2]
The appeal by the defendant Aharon Shimonovfrom so much of the order entered June 27, 2012, as conditionally granted that branch ofthe plaintiff's motion which was pursuant to CPLR 3126 to strike his answer isdismissed, as Shimonov did not oppose that branch of the plaintiff's motion, and noappeal lies from an order or a portion thereof which was entered upon the default of theappealing party (see CPLR 5511; Sanchez v Village of Ossining, 271AD2d 674 [2000]; Lumbermen's Mut. Cas. Co. v Fireman's Fund Am. Ins. Co.,117 AD2d 588 [1986]).
The Supreme Court providently exercised its discretion in conditionally granting thatbranch of the plaintiff's motion which was pursuant to CPLR 3126 to strike the answer ofthe defendant Hers Pasternak unless he appeared for a deposition by a date certain.Pasternak repeatedly failed to comply with court orders directing him to appear for adeposition, and failed to provide a reasonable excuse to justify those failures (see Bernal v Singh, 72 AD3d716, 717 [2010]; Savin vBrooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955 [2009]; Stinton v Robin's Wood, Inc.,45 AD3d 203 [2007]).
The Supreme Court also providently exercised its discretion in denying that branchof Pasternak's motion which was for leave to renew his opposition to that branch of theplaintiff's motion which was to strike his answer. "A motion for leave to renew is not asecond chance freely given to parties who have not exercised due diligence in makingtheir first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055 [2005]; see Rose v Levine, 98 AD3d1015, 1015-1016 [2012]; Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d727, 728 [2009]). A motion for leave to renew must be based upon new facts, notoffered on the prior motion that would change the prior determination, and the partyseeking renewal must have a "reasonable justification" for the failure to present suchfacts on the original motion (CPLR 2221 [e] [3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d882, 884 [2009]). Pasternak did not offer a reasonable justification for failing topresent the physician's affidavit in opposition to the original motion (see Rose vLevine, 98 AD3d at 1015-1016; Smith v State of New York, 71 AD3d 866, 868 [2010];Elder v Elder, 21 AD3d at 1055-1056). The excuse of Pasternak's attorney thathe was unable to obtain a physician's affidavit at the time of the original motion did notamount to a reasonable justification, given that seven months elapsed between the timeof the plaintiff's original motion and the final return date, which had been adjourned onmultiple occasions.
The Supreme Court providently exercised its discretion in denying Shimonov'smotion, in effect, to vacate so much of the prior order entered June 27, 2012, asconditionally granted that branch of the plaintiff's motion which was pursuant to CPLR3126 to strike his answer for his repeated failures to appear at court-ordered depositions,upon his failure to oppose that branch of the plaintiff's motion. To vacate so much of theorder entered June 27, 2012, as conditionally granted that branch of the plaintiff's motionwhich was to strike his answer, Shimonov was required to demonstrate a reasonableexcuse for his default in opposing that branch of the plaintiff's motion which was tostrike his answer and the existence of a potentially meritorious opposition to that branchof the plaintiff's motion (see CPLR 5015 [a] [1]; Gross v Johnson, 102 AD3d921 [2013]; Infante vBreslin Realty Dev. Corp., 95 AD3d 1075, 1076 [2012]; Dokaj v Ruxton Tower Ltd.Partnership, 91 AD3d 812, 813 [2012]). Shimonov failed to proffer any excusefor his default in opposing that branch of the plaintiff's motion which was to strike hisanswer. Furthermore, he failed to demonstrate a potentially meritorious opposition to thatbranch of the plaintiff's motion which was to strike his answer (see Carabello v Luna, 49AD3d 679, 680 [2008]; Duncan v Hebb, 47 AD3d 871 [2008]; Maignan v Nahar, 37 AD3d557 [2007]).
We have not considered matter dehors the record referred to in the appellants' replybriefs (see Tsikotis v PioneerBldg. Corp., 96 AD3d 936 [2012]; Poupis v Brown, 90 AD3d 881, 883 [2011]; Krzyanowski v Eveready Ins.Co., 28 AD3d 613 [2006]). Dillon, J.P., Hall, Roman and Cohen, JJ., concur.