Matter of Spiegel v Kempner

Matter of Spiegel v Kempner 2016 NY Slip Op 08316 Decided on December 8, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 8, 2016
Mazzarelli, J.P., Friedman, Acosta, Andrias, Moskowitz, JJ.
2440N 114420/11

[*1] In re Marianne Spiegel, Plaintiff-Appellant,

v

Carl Kempner, Defendant-Respondent, John Doe Nos. 1 through 5, Defendants.

Rea & Associates, LLC, New York (Edward M. Shapiro of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 10, 2015, which denied plaintiff's motion to remove the case from Civil Court to Supreme Court and, upon removal, to amend the complaint, unanimously affirmed, without costs.

This is plaintiff's second motion to remove the action from Civil Court to Supreme Court. Her first was denied in January 2012, on the ground that she had not made a sufficient showing on the merits of her case to warrant the relief requested. On this second motion, plaintiff again failed to show that there was "some reasonable basis" for her claim for increased damages or indeed that the damages can be attributed to negligence on defendant's part (Matter of Victor v de Maziroff, 275 App Div 69, 75 [1st Dept 1949], affd 300 NY 686 [1950]; see Platt v Flesher, 115 AD3d 468 [1st Dept 2014]).

Nor did plaintiff establish her right to amend the complaint, since she did not proffer a reasonable excuse for her failure to make her second motion until more than three years after the first one was denied and nearly nine years after the flooding incident in question (see Oil Heat Inst. of Long Is. Ins. Trust v RMTS Assoc., 4 AD3d 290, 293-294 [1st Dept 2004]). Contrary to plaintiff's contention, defendant has been hindered in the preparation of his case as a result of her delay (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23-24 [1981]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2016

CLERK