| Cioffi v S.M. Foods, Inc. |
| 2016 NY Slip Op 05742 [142 AD3d 526] |
| August 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Frederick M. Cioffi et al., Appellants, v S.M.Foods, Inc., et al., Respondents. (And a Third-Party Action.) |
Grant & Longworth, LLP, Dobbs Ferry, NY (Jonathan Rice and Pollack,Pollack, Isaac & DeCicco, LLP [Brian J. Isaac and Kenneth J. Gorman] of counsel),for appellants.
Baxter Smith & Shapiro, P.C., White Plains, NY (Sim R. Shapiro of counsel),for respondents S.M. Foods, Inc., GFI Boston, LLC, Ryder Truck Rental, Inc., PLMTrailer Leasing, and Daniel E. Burke.
White Quinlan & Staley, LLP, Garden City, NY (Terence M. Quinlan ofcounsel), for respondents Atlanta Foods International, Russell McCall's, Inc., and DougJay.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, WestchesterCounty (Lefkowitz, J.), dated October 20, 2014, as granted those branches of the motionof the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jaywhich were to strike certain discovery demands and denied that branch of their crossmotion which was to preclude the defendants from offering certain evidence at trial, and(2) from an order of the same court dated March 4, 2015, which denied their motion forleave to renew and reargue their opposition to the motion of the defendants AtlantaFoods International, Russell McCall's, Inc., and Doug Jay to strike certain discoverydemands, and denied that branch of their cross motion which was to preclude thedefendants from offering certain evidence at trial.
Ordered that the appeal from so much of the order dated March 4, 2015, as deniedthat branch of the plaintiffs' motion which was for leave to reargue is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that the order dated October 20, 2014, is affirmed insofar as appealed from;and it is further,
Ordered that the order dated March 4, 2015, is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendants appearing separately andfiling separate briefs.
[*2] On May 22, 2009,the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer,allegedly was injured while he was conducting a traffic stop on foot when he was struckby a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer wasowned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19,2008, the tractor trailer had been leased pursuant to a rental agreement to the defendantGFI Boston, LLC (hereinafter GFI), Burke's employer. The injured plaintiff, and his wifesuing derivatively, commenced this action against, among others, Ryder, GFI, Burke, andcertain of GFI's corporate parents and principals, namely, the defendants Atlanta FoodsInternational, Russell McCall's, Inc., and Doug Jay (hereinafter collectively the Atlantadefendants), to recover damages for personal injuries (see Cioffi v S.M. Foods, Inc.,129 AD3d 888 [2015]).
The Atlanta defendants moved, inter alia, to strike certain discovery demands servedby the plaintiffs. The plaintiffs cross-moved, inter alia, to preclude the defendants fromoffering certain evidence at trial on the ground that the defendants allegedly failed tocomply with discovery orders and demands. In an order dated October 20, 2014, theSupreme Court granted that branch of the Atlanta defendants' motion which was to strikethe plaintiffs' discovery demands to the extent of striking some of the demands identifiedin their motion. The court denied that branch of the plaintiffs' cross motion which was topreclude the defendants from offering certain evidence at trial. The plaintiffs moved,inter alia, for leave to renew their opposition to the Atlanta defendants' motion, and theircross motion. In an order dated March 4, 2015, the Supreme Court denied the plaintiffs'motion. The plaintiffs appeal from both orders.
" '[A] trial court is given broad discretion to oversee the discoveryprocess' " (Maiorino vCity of New York, 39 AD3d 601, 601 [2007], quoting Castillo v HenrySchein, Inc., 259 AD2d 651, 652 [1999]; see Cioffi v S.M. Foods, Inc., 142 AD3d 520 [2016] [decided herewith]; Berkowitz v 29 Woodmere Blvd. Owners', Inc., 135 AD3d798, 799 [2016]). Thus, "[t]he supervision of disclosure and the setting ofreasonable terms and conditions therefor rests within the sound discretion of the trialcourt and, absent an improvident exercise of that discretion, its determination will not bedisturbed" (Berkowitz v 29 Woodmere Blvd. Owners', Inc., 135 AD3d at 799[internal quotation marks omitted]; see Gould v Decolator, 131 AD3d 445, 447 [2015]; Ligoure v City of New York,128 AD3d 1027, 1028 [2015]; Daniels v City of New York, 117 AD3d 981 [2014]).Nevertheless, this Court is "vested with a corresponding power to substitute its owndiscretion for that of the trial court" (Peculic v Sawicki, 129 AD3d 930, 931 [2015]; seeAndon v 302-304 Mott St. Assoc., 94 NY2d 740, 745 [2000]; Brady v OttawayNewspapers, 63 NY2d 1031, 1032 [1984]).
Here, the Supreme Court properly granted those branches of the Atlanta defendants'motion which were to strike certain of the plaintiffs' discovery demands. A review of therecord demonstrates that the court carefully reviewed the plaintiffs' discovery demands todetermine which were relevant and proper and gave the parties detailed directionsregarding their responses. We have reviewed the plaintiffs' demands and the orderstriking portions of those demands and perceive no improvident exercise ofdiscretion.
The Supreme Court also properly denied that branch of the plaintiffs' cross motionwhich was to preclude the defendants from offering certain evidence at trial. Pursuant toCPLR 3126, where a party "refuses to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed," the court may,inter alia, preclude that party from presenting evidence (CPLR 3126 [2]). Precluding aparty from presenting evidence is a drastic remedy which generally requires a showingthat the party's conduct is willful and contumacious (see Jennings v Orange Regional Med. Ctr., 102 AD3d 654,656 [2013]). "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" (RockCity Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 686-687 [2011][internal quotation marks and citations omitted]; see Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C.,127 AD3d 911, 913 [2015]; Commisso v Orshan, 85 AD3d 845 [2011]; Friedman, Harfenist, Langer& Kraut v Rosenthal, 79 AD3d 798, 800 [2010]). "The nature and degreeof the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of themotion court" (Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d at686; see Commisso v Orshan, 85 AD3d at 845; Friedman, Harfenist, Langer& Kraut v Rosenthal, 79 AD3d at 800; Savin v Brooklyn [*3]Mar. ParkDev. Corp., 61 AD3d 954, 954 [2009]).
Here, the defendants cannot be sanctioned for failing to respond to discoverydemands which were ultimately stricken by the Supreme Court. As to the remainingdemands, the plaintiffs have failed to demonstrate that any of the defendants actedwillfully and contumaciously in violation of the court's orders. Accordingly, the courtprovidently exercised its discretion in denying that branch of the plaintiffs' cross motionwhich was to preclude the defendants from offering certain evidence at trial (seeCrystal Clear Dev., LLC v Devon Architects of N.Y., P.C., 127 AD3d at 913; Silberstein v Maimonides Med.Ctr., 109 AD3d 812, 814 [2013]; Jennings v Orange Regional Med. Ctr.,102 AD3d at 656).
A motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination" (CPLR 2221 [e] [2]). To prevail on amotion for leave to renew, the motion "must be (1) based upon new facts not offered onthe prior motion that would change the prior determination, and (2) set forth a reasonablejustification for the failure to present such facts on the prior motion" (Matter of Nelson v Allstate Ins.Co., 73 AD3d 929, 929 [2010]; see Central Mtge. Co. v Resheff, 136 AD3d 962, 963[2016]; Deutsche Bank TrustCo. v Ghaness, 100 AD3d 585, 585-586 [2012]; Jovanovic v Jovanovic, 96AD3d 1019, 1020 [2012]). The new or additional facts presented "either must havenot been known to the party seeking renewal or may, in the Supreme Court's discretion,be based on facts known to the party seeking renewal at the time of the original motion"(Deutsche Bank Trust Co. v Ghaness, 100 AD3d at 586; see Rowe v NYCPD, 85 AD3d1001, 1003 [2011]; Gonzalez v Vigo Constr. Corp., 69 AD3d 565, 566 [2010]).A motion for leave to renew "is not a second chance freely given to parties who have notexercised due diligence in making their first factual presentation" (Coccia v Liotti, 70 AD3d747, 753 [2010] [internal quotation marks omitted]; see Jovanovic vJovanovic, 96 AD3d at 1020; Rowe v NYCPD, 85 AD3d at 1003; Mollin v County of Nassau, 2AD3d 600, 601 [2003]). Accordingly, "the Supreme Court lacks discretion to grantrenewal where the moving party omits a reasonable justification for failing to present thenew facts on the original motion" (Jovanovic v Jovanovic, 96 AD3d at 1020;see Rowe v NYCPD, 85 AD3d at 1003). Reasonable justification does not existwhere "the new evidence consists of documents which the [moving party] knew existed,and were in fact in his [or her] own possession at the time the initial motion was made"(Rowe v NYCPD, 85 AD3d at 1003 [internal quotation marks omitted]; seeJovanovic v Jovanovic, 96 AD3d at 1020).
Here, the plaintiffs failed to point to any new or additional facts beyond newaffidavits from their experts and, as to these, offered no explanation why they could nothave been submitted with their original motion papers. Accordingly, the Supreme Courtproperly denied that branch of the plaintiffs' motion which was for leave to renew theircross motion and their opposition to the Atlanta defendants' motion.
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Sgroi, Duffyand Brathwaite Nelson, JJ., concur. [Prior Case History: 2014 NY Slip Op32808(U).]