Terranova v New York-MTA-Metropolitan Suburban Bus Auth. (MSBA) County of Nassau

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Terranova v New York-MTA-Metropolitan Suburban Bus Auth. (MSBA) County of Nassau 2012 NY Slip Op 30822(U) February 14, 2012 Supreme Court, Nassau County Docket Number: 4824/08 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .... .... .............. ........ .... .... .............. ................... .......... ........ .. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: BON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 3 NASSAU COUNTY IGNAZIO TERRNOVA, as Administrator of the Estate of ADRINO TERRNOV A, Deceased, Plaintiff, MOTION SEQ. NO. : 004 MOTION DATE: 11/4/11 -againstNEW YORK- MT A- METROPOLITAN SUBURBAN BUS AUTHORITY (MSBA), COUNTY OF NASSAU, AND JOHN DOE, BUS DRIVER, INDEX NO. : 4824/08 Defendants. The following papers having been read on the motion (numbered 1-4): Notice of Motion......................... ................................ ................................. Affrms tio n in Op positi 0 D............... .................... ..... ............. ...... ...... II.... .... II.. II........." ......... Reply Affrmation..................................... ........ II Memorandum of Law........ Motion by defendant MTA-Long Island Bus s/ha New York-MTA Metropolitan Suburban Bus Authority (MSBA) (hereinafter " MTA- Long Island Bus ) for an order pursuant to CPLR 2221(a) to vacate "the prior order of this Court (Winslow , J. ) dated sua sponte precluded defendant May 23, 2011 and entered on May 27 2011 MTA- Long Island Bus from ' offering testimony of driver employee Owen Francis (sicshould be Frances) for any purpose in further proceedings or at the tral of the matter ' " is determined as follows. In support of its motion, MT A- Long Island Bus asserts , in pertinent part , that: vacatur is warranted as the subject order was made sua sponte without a motion , without due process, and without basis as preclusionar relief may only be premised on a record which demonstrates wilful and contumacious conduct violative of , which disclosure obligations relative to the precluded item. The bus operator, Owen Francis, had given testimony at an examinationbefore- trial on April 21 , 2010, more than one year before the May 2011 preclusion order was issued. [* 2] No record was ever demonstrated of any wilful or contumacious conduct on the par ofMTA- Long Island Bus , nor was preclusion of Mr. Francis ' testimony ever sought by motion or otherwise. Indeed, it is not entirely clear why this court rendered the preclusion order and , most respectfully, it may have been based on a misapprehension of prior proceedings and/or dissatisfaction with the longevity of the action. In this regard , as more fully set forth below , the minutes of the fmal certification conference conducted before the Hon. F. Dana Winslow , on March 29 2011 in which the preclusion order was verbally rendered by the court, reflect that at that time cour was possessed of two erroneous beliefs: (a) that the cour had previously attempted accident reconstruction that had taken place on July 6, 2010 which in par had been coordinated by MTA- Long Island Bus as part of its defense strategy and work product; and, (2) that Mr. Michael Annienti , counsel for MTA- Long Island Bus , had previously represented to the court that such videotape was in existence. these two points the court was in error." (,-,- 3 , 4, 5 , & 6 of Vanessa Corchia s Affirmation). directed an in camera inspection of a videotape of an In opposition to the motion , plaintiff contends that: a) no basis to vacate the May 23, 2011 has been demonstrated; b) the term "misapprehension " is used regularly in the motion and is statutorily associated with a reargument motion (CPLR2221(d)(2); c) the present application is untimely as the subject order with notice of entr was served on June 27, 2011; d) to the extent that defendant seeks renewal , the moving papers do not offer a "reasonable justification " for the failure to present the additional voluminous facts (CPLR 2221(e)(3); and 3) " (tJhe discovery proceeding in this case made clear and concerted effort by the MT A and their attorneys to tamper with and manipulate the recollections and perceptions of both their own investigation witness (Clifford Redmond) and their driver. (,- 12 of Joseph Andruzzi' s Affirmation). In response thereto , defendant asserts that: plaintiff's papers were late and the court should reject the opposition papers as untimely; and "the moving papers [* 3] comprehensively set fort the basis on which vacatur of the prior order of this court was sought pursuant to Rule 2221(a) of the Civil Practice Law and Rules detailing the litigation events subsequent to the attempted accident reconstruction on July 6 , 2010 and preclusion of testimony of bus operator, Owen Francis , at a up to this court' conference conducted on March 29 2011." In particular, defendant " included the specific details of what transpired durng the four interim conferences conducted before this cour on July 21, 2010 , September 8, 2010 , October 20, 20 I 0 and March 18, 2011 that preceded the March 29, 2011 conference. (,- 6 of Vanessa Corchia s Reply Affirmation). While defendant MTA- Long Island Bus has moved pursuant to CPLR 2221(a) to vacate the prior order dated May 23 , 2011 , the arguents raised herein are those associated with a motion to reargue and/or renew the order dated May 23, 2011. No basis for reargument exists here. Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the cour overlooked or misapprehended the facts or law or for some ( other) reason mistakenly arived at the E. W. Smith 64 AD3d 669 , 883 (2 earlier decision. S.A. F. La Sala Corp. 36 AD3d 653 , 654 (2 Howell Co. CPLR 2221(d). " (A) motion for leave Daddazio 84 AD3d 940 942 (2 to reargue ' is not designed to provide an unsuccessful par with successive opportnities to reargue issues previously decided, or to present arguments different ftom those 71 AD3d 874 (2 Dept see Woody s Lbr. Goldman 261 AD2d 593, 594 (2 Roche Jayram Realty Corp. 30 AD3d 590 592- 593 , (2 56 N. 2d 507 (1982). 68 AD2d 558 567Based upon the evidentiary record before the Court, we find that defendant' motion is another attempt to reargue the same issues and facts previously decided by this and no Rella basis exists to conclude that the Cour misapprehended the facts and law and mistakenly Goldman, supra; found that preclusion was warranted. Taylor 10 AD3d 374 (2 Dept 2004). sua sponte Dept 2009), quoting Barnett Dept 2011); see Yenom Corp., (Veeraswamy Realty originally presented' Dept 1999); McGil 2010), quoting Dept 2006); Co., Inc. 568 (Ist Dept 1979), Cour (see Mazinov Foley app den. 79 AD3d 979 pod Dept 2010); CPLR 2221(d)(2); Amato Hague Dept 2007); , Inc. Foley Roche, supra) McGil Lord Nor is renewal waranted. A motion for leave to renew " shall be based upon new facts not offered on the prior motion that would change the prior determination. . . and shall contain reasonable justification for the failure to present such facts on the prior motion " (CPLR 2221 (e) (2), (3)). While a court has the discretion to grant renewal upon facts known to the movant at [* 4] (see May the time of the original motion May, 78 AD3d 667 (2 Dept 2010); 73 AD3d 1013 (2 Dept 2010), " motion for leave to renew ' is not a second chance freely given to paries who have not Gullo , 19 exercised due dilgence in making their first factual presentation Goldman 225 AD2d 328 , 329 (1 AD3d 472 , 473 (2 Patel, Liotti 70 AD3d 747 , 752- 753 (2nd 68 AD3d 821 (2 Dept 201OJ. A review of the record indicates that the moving defendant has not presented any Schenectady Steel Co., Inc. Meyer Contr. Corp., (Renna Dept 2005), quoting Dept 1996); Rubinstein Dept 2010); see Coccia new facts that would change the May 23, 2011 order. (See May Huma May, supra; Huma Patel, supra). denied. In view of the foregoing, the motion by MTAThis Court has reviewed the defendant' s remaining arguments and finds them to be without merit. This constitutes the Order of the Cour. Long Island Bus is 'f/ .2q TI=RED MAR 2.8 2012 NASSAU CouNTY COUNTY CLERK' 4) OFfiCi:

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