Curiel v Loews Cineplex Theaters, Inc.

Curiel v Loews Cineplex Theaters, Inc. 2009 NY Slip Op 08877 [68 AD3d 415] December 1, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Carolyn Curiel, Appellant,
v
Loews Cineplex Theaters, Inc., Respondent.

—[*1] Lopez Romero & Montelione, P.C., New York (Richard J. Montelione of counsel), for appellant.

Carroll, McNulty & Kull, LLC, New York (Emilio F. Grillo of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 28, 2008 (the first order), which, in an action for personal injuries sustained in a slip and fall in the lobby of defendant's movie theater, inter alia, conditionally denied plaintiff's cross motion to strike defendant's answer, unanimously affirmed, without costs. Order, same court and Justice, entered February 11, 2009 (the second order), which, insofar as appealable, denied a second motion by plaintiff to strike defendant's answer, unanimously affirmed, without costs.

With respect to the first order, there has been no showing that the delay was willful, contumacious, or the result of bad faith, and, in the absence of any substantive prejudice to plaintiff caused by the delay, a conditional order was a proper exercise of discretion (see Gibbs v St. Barnabas Hosp., 61 AD3d 599, 600 [2009]). With respect to the second order, the motion court properly fixed a strict schedule for completing the deposition (see id.). We have reviewed plaintiff's other arguments, including those relating to the branch of her motions that sought to amend the caption, and find them to be unavailing. Concur—Mazzarelli, J.P., Sweeny, Catterson, Freedman and Roman, JJ. [Prior Case History: 2008 NY Slip Op 32378(U).]