| Vitolo v Suarez |
| 2015 NY Slip Op 05666 [130 AD3d 610] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Francesca Vitolo, Appellant, v Delvin MosesSuarez, Respondent. |
Albert Zafonte, Jr. (Richard Paul Stone, New York, N.Y., of counsel), forappellant.
Mendolia & Stenz (Russo, Apoznanski & Tambasco, Melville, N.Y.[Susan J. Mitola and Jerry Ferrara], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1)an order of the Supreme Court, Queens County (Greco, Jr., J.), entered July 29, 2013,which granted the defendant's motion for summary judgment dismissing the complaintbased upon the plaintiff's failure to serve a bill of particulars as directed by a conditionalorder of preclusion dated November 28, 2012, and (2) an order of the same court enteredFebruary 13, 2014, which denied her motion, in effect, for leave to reargue heropposition to the defendant's motion or, in the alternative, pursuant to CPLR 5015 (a)(1), in effect, to vacate her default in complying with the conditional order of preclusiondated November 28, 2012.
Ordered that the order entered July 29, 2013, is affirmed; and it is further,
Ordered that the appeal from so much of the order entered February 13, 2014, asdenied that branch of the plaintiff's motion which was for leave to reargue is dismissed,as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered February 13, 2014, is affirmed insofar as reviewed;and it is further,
Ordered that one bill of costs is awarded to the defendant.
On July 30, 2010, the plaintiff allegedly was injured when the vehicle she wasoperating was struck by the defendant's vehicle on Broadway at or near the intersectionof 55th Street in Queens. The plaintiff commenced this action in July 2011. Issue wasjoined in December 2011. In a preliminary conference order dated May 21, 2012, theSupreme Court, inter alia, directed the plaintiff to serve a bill of particulars on or beforeJune 21, 2012. In February and August 2012, the defendant's counsel sent letters to theplaintiff's counsel noting that the plaintiff had not yet served a bill of particulars orresponded to any discovery demands. In a written stipulation dated November 8, 2012,the defendant withdrew a previous motion to compel compliance with discovery [*2]and, in exchange therefor, the plaintiff promised to serveher bill of particulars by December 10, 2012. In a compliance conference order datedNovember 28, 2012, the Supreme Court directed that the plaintiff serve a bill ofparticulars "within 30 days or shall be precluded from offering evidence regardingdamages at the time of trial." The plaintiff failed to serve the bill of particulars by thedeadline set in the November 28, 2012, order. The defendant moved pursuant to CPLR3212 and 3126 for summary judgment dismissing the complaint, based upon theplaintiff's failure to comply with the November 28, 2012, order. In an order entered July29, 2013, the Supreme Court granted the motion. In September 2013, the plaintiff movedpursuant to CPLR 2221 (d), in effect, for leave to reargue her opposition to thedefendant's motion or, alternatively, pursuant to CPLR 5015 (a) (1) to vacate her defaultin complying with the November 28, 2012, order. In an order entered February 13, 2014,the Supreme Court denied the motion.
The order dated November 28, 2012, contained a directive conditionally precludingthe plaintiff from offering evidence of damages at trial unless she served a bill ofparticulars within 30 days of the order. It is undisputed that the plaintiff failed to serve abill of particulars by the court-imposed deadline. Therefore, the conditional order becameabsolute, precluding the plaintiff from offering evidence of damages at trial (see Keenan v Fiorentino, 84AD3d 740 [2011]). To be relieved of the adverse impact of the conditional order ofpreclusion, the plaintiff was required to demonstrate a reasonable excuse for her failureto comply with the order and the existence of a potentially meritorious cause of action(see Gibbs v St. BarnabasHosp., 16 NY3d 74, 80 [2010]; Estate of Alston v Ramseur, 124 AD3d 713, 714 [2015]; SRN Realty, LLC v ScaranoArchitect, PLLC, 116 AD3d 693, 694 [2014]). Here, the plaintiff failed toprovide a reasonable excuse for her default, as her claim of law office failure was vague,conclusory, and unsubstantiated (see Dobbyn-Blackmore v City of New York, 123 AD3d1083 [2014]). Moreover, the plaintiff's pattern of failing to comply with discoverydemands, the preliminary conference order, a written stipulation, and the order datedNovember 28, 2012, supports an inference that such conduct was willful (see Betz v Carbone, 126 AD3d743 [2015]; Arpino v F.J.F.& Sons Elec. Co., Inc., 102 AD3d 201, 210 [2012]). Since the plaintifffailed to demonstrate a reasonable excuse for her failure to comply with the November28, 2012, order, it is unnecessary to consider whether she demonstrated a potentiallymeritorious cause of action (seeSelechnik v Law Off. of Howard R. Birnbach, 120 AD3d 1220 [2014]).Damages are a necessary element of a negligence claim which must be pleaded andproven (see Siler v LutheranSocial Servs. of Metro. N.Y., 10 AD3d 646, 648 [2004]). Thus, the order datedNovember 28, 2012, precluding the plaintiff from offering evidence of damages at trial,prevented her from making out a prima facie case (see Keenan v Fiorentino, 84AD3d at 740-741). Accordingly, the Supreme Court properly granted the defendant'smotion for summary judgment dismissing the complaint.
The plaintiff's remaining contentions are without merit or have been renderedacademic by our determination. Dillon, J.P., Leventhal, Chambers and Maltese, JJ.,concur.