| Brinson v Pod |
| 2015 NY Slip Op 05432 [129 AD3d 1005] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| Henry Brinson, Appellant, v Curtis Pod et al.,Respondents. |
Sobo & Sobo, LLP, Middletown, N.Y. (Brett Peter Linn and Elissa Carrick ofcounsel), for appellant.
Burke, Gordon & Conway, White Plains, N.Y. (Ashley E. Sproat of counsel),for respondents Kristen Smith, also known as Kristen Barone, Mark Barone, andVirginia Barone.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Orange County (Bartlett, J.), dated December 17, 2013,which granted that branch of the unopposed motion of the defendants Kristen Smith, alsoknown as Kristen Barone, Mark Barone, and Virginia Barone which was pursuant toCPLR 3126 to preclude him from introducing, at trial, evidence of his injuries basedupon his failure to appear at a physical examination, and thereupon directed the dismissalof the complaint, and (2) an order of the same court dated April 9, 2014, which deniedhis motion pursuant to CPLR 5015 (a) (1) to vacate the order dated December 17, 2013,and to thereupon (a) deny the motion of the defendants Kristen Smith, also known asKristen Barone, Mark Barone, and Virginia Barone pursuant to CPLR 3126 to precludehim from introducing, at trial, evidence of his injuries or, in the alternative, pursuant toCPLR 3124 to compel a physical examination of him, and (b) restore the action to thepre-note of issue calendar.
Ordered that the appeal from the order dated December 17, 2013, is dismissed, as noappeal lies from an order entered upon the default of an appealing party (seeCPLR 5511); and it is further,
Ordered that the order dated April 9, 2014, is reversed, on the facts and in theexercise of discretion, those branches of the plaintiff's motion which were pursuant toCPLR 5015 (a) (1) to vacate the order dated December 17, 2013, and to thereupon (a)deny that branch of the motion of the defendants Kristen Smith, also known as KristenBarone, Mark Barone, and Virginia Barone which was pursuant to CPLR 3126 topreclude him from introducing, at trial, evidence of his injuries, and (b) restore the actionto the pre-note of issue calendar, are granted, the order dated December 17, 2013, isvacated, and the matter is remitted to the Supreme Court, Orange County, for adetermination, on the merits, of that branch of the motion of the defendants KristenSmith, also known as Kristen Barone, Mark Barone, and Virginia Barone which waspursuant to CPLR 3124 to compel a physical examination of the plaintiff in accordanceherewith; and it is [*2]further,
Ordered that one bill of costs is awarded to the plaintiff.
On May 18, 2011, the plaintiff allegedly was injured when ceiling tiles in theapartment in which he resided fell on his head. The defendants Kristen Smith, alsoknown as Kristen Barone, Mark Barone, and Virginia Barone (hereinafter collectivelythe Barone defendants) owned the apartment where the accident occurred. The defendantCurtis Pod owned the upstairs unit. The defendant Horizon Hill Condominiums ownedthe common areas of the condominium complex in which the apartment was situated, andthe defendant River Management was the management company responsible for themaintenance and upkeep of the complex. The plaintiff commenced this action to recoverdamages for personal injuries against the Barone defendants, Pod, Horizon HillCondominiums, and River Management. The plaintiff was incarcerated at the time thathe commenced this action.
On January 16, 2013, the Supreme Court issued an order which directed the plaintiffto provide, by March 6, 2013, the name and address of the facility in which he wasimprisoned and the written rules and regulations of that facility, so that the defendantscould conduct a physical examination and a deposition of him. This order was faxed tocounsel, but not entered in the appropriate clerk's office. In May 2013, the plaintiff wasdeposed at the United States Penitentiary in Canaan, Pennsylvania. Thereafter, in August2013, a paralegal, writing on behalf of the plaintiff's counsel, sent a letter to thedefendants' attorneys, advising them that the plaintiff had been transferred to FederalCorrectional Institution Elkton, in Lisbon, Ohio, and that any requests to conduct aphysical examination of the plaintiff had to be sent to the attention of Jason Hayes, theunit manager at that facility, at the address provided. The Barone defendants, through athird party, nonetheless scheduled a physical examination of the plaintiff to be conductedby an orthopedist in Newburgh, New York, on October 10, 2013. The paralegal for theplaintiff's counsel thereafter faxed a letter to counsel for the Barone defendants,reminding them that the plaintiff was incarcerated in Ohio. The Barone defendants,through the same third party, nevertheless rescheduled the physical examination with theorthopedist at the same location in Newburgh for October 24, 2013. In response, theparalegal for the plaintiff's counsel again reminded counsel for the Barone defendantsthat the plaintiff was incarcerated in Ohio, and requested counsel to arrange for him to beexamined at that facility.
On October 24, 2013, the Barone defendants sent a letter to the Supreme Court,requesting permission to make a motion with respect to the plaintiff's failure to appearfor a physical examination, or for additional time within which to conduct theexamination. In response, the plaintiff's counsel advised the Supreme Court that thedefendants had been made aware that the plaintiff would not be able to attend a medicalexamination in Newburgh by virtue of his incarceration, and that the defendants had beenprovided with the name and address of the person at the federal correctional institution towhom requests for a medical examination of the plaintiff should be directed. With theSupreme Court's permission, the Barone defendants then moved pursuant to CPLR 3126to preclude the plaintiff from presenting evidence relating to damages at trial for hisfailure to appear for a physical examination or, in the alternative, pursuant to CPLR 3124directing the plaintiff to comply with the demand for a physical examination. Theplaintiff's opposition to the Barone defendants' motion was sent to the Orange CountyClerk for filing, along with a request that the original be forwarded to the Justiceassigned in the Supreme Court.
Since the plaintiff's opposition to the Barone defendants' motion was submitted to theCounty Clerk rather than directly to chambers of the Justice assigned to the action, it wasnot timely received or considered by the Supreme Court in determining that motion. In anorder dated December 17, 2013, the Supreme Court granted, as unopposed, that branchof the Barone defendants' motion which was to preclude the plaintiff from adducingevidence of his injuries at trial, and directed the dismissal of the complaint. It found thatthe plaintiff failed to comply with the order dated January 16, 2013.
On February 7, 2014, Pod's attorney served the plaintiff by mail with a copy of the[*3]order dated December 17, 2013, with notice of itsentry. Thereafter, by notice of motion dated March 6, 2014, the plaintiff moved pursuantto CPLR 5015 (a) (1) to vacate the order dated December 17, 2013, and to thereupondeny the Barone defendants' motion pursuant to CPLR 3126 and 3124, and restore theaction to the pre-note of issue calendar. In support of his motion, the plaintiff, in anaffidavit, acknowledged that his papers in opposition to the Barone defendants' motionpursuant to CPLR 3126 and 3124, while timely served upon all of the defendants, hadbeen incorrectly filed in the office of the County Clerk, rather than with the chambers ofthe Justice assigned to the case, as required by the Individual Part Rules of that Justice.He also explained that he was no longer imprisoned, and could now attend a physicalexamination in New York. Horizon Hill Condominiums and River Management(hereinafter together the Horizon Hill defendants) and Pod opposed the plaintiff'smotion, while the Barone defendants did not submit opposition. In an order dated April9, 2014, the Supreme Court denied the plaintiff's motion in its entirety.
The plaintiff appeals from both the order dated December 17, 2013, and the orderdated April 9, 2014.
The plaintiff's appeal from the order dated December 17, 2013, must be dismissed, asno appeal lies from an order entered upon the default of the appealing party (seeCPLR 5511; Matter of Renner vCostigan, 123 AD3d 834, 834 [2014]). We note that, in any event, the appealfrom that order has been rendered academic in light of our determination on the appealfrom the order dated April 9, 2014.
The Supreme Court improvidently exercised its discretion in denying those branchesof the plaintiff's motion which were to vacate the order dated December 17, 2013, andthereupon to deny that branch of the Barone defendants' motion which was to precludehim from adducing evidence of his injuries at trial and restore this action to the pre-noteof issue calendar. To vacate the order dated December 17, 2013, which was entered uponhis default in opposing the Barone defendants' motion, the plaintiff was required todemonstrate both a reasonable excuse for the default and a potentially meritoriousopposition to the motion (see CPLR 5015 [a] [1]; Oller v Liberty Lines Tr., Inc.,111 AD3d 903, 904 [2013]; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662[2013]; Smyth v GettyPetroleum Mktg., Inc., 103 AD3d 790, 790 [2013]; Infante v Breslin Realty Dev.Corp., 95 AD3d 1075, 1076 [2012]). "Whether a proffered excuse is 'reasonable'is a 'sui generis determination to be made by the court based on all relevant factors,including the extent of the delay, whether there has been prejudice to the opposing party,whether there has been willfulness, and the strong public policy in favor of resolvingcases on the merits' " (Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013],quoting Harcztark v DriveVariety, Inc., 21 AD3d 876, 876-877 [2005]; see Lyubomirsky v Lubov Arulin,PLLC, 125 AD3d 614 [2015]; Oller v Liberty Lines Tr., Inc., 111 AD3dat 904). CPLR 2005 provides that the court may consider documented law office failureas a reasonable excuse (seeDorio v County of Suffolk, 58 AD3d 594, 595 [2009]; Moore v Day, 55 AD3d803, 804 [2008]).
Here, the plaintiff had a reasonable excuse for failing to file papers with the SupremeCourt in opposition to the Barone defendants' motion. While the plaintiff's counsel failedto follow the Individual Part Rules of the Justice assigned to this matter with respect tothe filing of papers, the plaintiff's counsel did timely serve the opposition papers uponthe other parties, and the mistake with respect to the filing of the papers was inadvertent.Further, there is no evidence that the plaintiff's default was willful, the plaintiffexpeditiously moved to vacate the default subsequent to receiving notice of entry of theorder dated December 17, 2013, and there is no evidence in the record that the plaintiffintended to abandon this action or that the defendants were prejudiced by the delay inexamining the plaintiff. Moreover, the plaintiff demonstrated that he had a potentiallymeritorious opposition to the Barone defendants' motion. Accordingly, the order datedDecember 17, 2013, which was entered upon the plaintiff's default, should have beenvacated.
Furthermore, upon vacating the order dated December 17, 2013, the Supreme Courtshould have denied that branch of the Barone defendants' motion which was pursuant toCPLR 3126 to preclude the plaintiff from adducing evidence of his injuries at trial.Before a court invokes the drastic remedy of precluding evidence, there must be a clearshowing that the failure to comply with discovery demands or court-ordered discoverywas willful and contumacious (see Arpino v F.J.F.[*4]& SonsElec. Co., Inc., 102 AD3d 201, 210 [2012]; Zakhidov v Boulevard Tenants Corp., 96 AD3d 737, 739[2012]). Willful and contumacious conduct may be inferred from a party's repeatedfailure to comply with court-ordered discovery, coupled with inadequate explanations forthe failures to comply or a failure to comply with court-ordered discovery over anextended period of time (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102AD3d at 210; Orgel v StewartTit. Ins. Co., 91 AD3d 922, 924 [2012]; Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 814[2012]; Commisso vOrshan, 85 AD3d 845, 845 [2011]). The requests made on behalf of the Baronedefendants that the plaintiff appear in New York for a physical examination were futile,given that the plaintiff was then incarcerated in Ohio. Further, there is no evidence thatany of the defendants ever attempted to act upon the information provided by theplaintiff by contacting the correctional facility in Ohio to schedule a physicalexamination. Thus, the Supreme Court improvidently exercised its discretion in grantingthat branch of the Barone defendants' motion which was pursuant to CPLR 3126 topreclude the plaintiff from adducing evidence of his injuries at trial, and thereupondirecting the dismissal of the complaint, since the plaintiff's conduct was not shown to bewillful and contumacious (see Obrenski v Tushinsky, 63 AD2d 695, 695[1978]).
Accordingly, the order dated December 17, 2013, should have been vacated, theBarone defendants' motion pursuant to CPLR 3126 to preclude the plaintiff fromadducing evidence of his injuries at trial should have been denied, and the matter shouldhave been restored to the pre-note of issue calendar.
Since that branch of the Barone defendants' motion which was pursuant to CPLR3124 to compel the plaintiff to submit to a physical examination remains pending anundecided, we remit the matter to the Supreme Court, Orange County, to determine thatbranch of the motion on the merits. In making its determination, the court shall considerthe opposition papers initially served by the plaintiff upon the defendants, and anyadditional papers it shall permit the parties to serve and file. Mastro, J.P., Chambers,Austin and Miller, JJ., concur.