IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.
Annotate this CaseDecided on March 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-535 K C.
IVB MEDICAL SUPPLY, INC. a/a/o Givi Mitchedleshvili, Appellant,
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE CO., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Karen B. Rothenberg, J.), entered March 2, 2006. The order granted defendant's motion to dismiss plaintiff's action for failure to comply with a court-ordered examination before trial and denied plaintiff's cross motion to vacate, renew and reargue the order of the same court (Sarah L. Krauss, J.), entered December 7, 2004, which denied plaintiff's motion for summary judgment and granted defendant's cross motion to the extent of compelling one of plaintiff's employees to appear for an examination before trial.
Appeal from so much of the order as denied that branch of plaintiff's cross motion which sought reargument dismissed.
Order, insofar as reviewed, affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for an order compelling plaintiff, plaintiff's assignor and the assignor's treating physician to appear for examinations before trial. In its reply papers, plaintiff did not oppose that branch of defendant's cross motion which sought an order compelling depositions. By order entered December 7, 2004, the court denominated defendant's cross motion as one seeking summary judgment as well as to compel examinations before trial, denied plaintiff's motion for summary judgment, denied defendant summary [*2]judgment and granted, on default, defendant's cross motion to the extent of compelling one of plaintiff's employees with relevant knowledge to appear for an examination before trial within 60 days, provided that the defendant re-serve a deposition notice within 20 days of said order. Thereafter, defendant moved to dismiss the complaint on the ground that, on December 8, 2004, it had served plaintiff with a copy of the prior order with notice of entry and that on December 10, 2004, defendant served plaintiff with a notice to take deposition. However, plaintiff failed to produce an employee for the court-
ordered deposition. Plaintiff cross-moved to vacate the December 7, 2004 order and for reargument and renewal of said order. By order entered March 2, 2006, from which plaintiff now appeals, the court granted defendant's motion to dismiss the complaint and denied plaintiff's cross motion.While plaintiff is appealing from the branch of the order which denied its motion for reargument, no appeal lies from an order denying reargument (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]). To the extent plaintiff is also appealing from the branch of the order which denied its motion seeking renewal, CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon "new facts not offered on the prior motion that would change the prior determination" or must show "that there has been a change in the law that would change the prior determination." Furthermore, the motion papers must contain a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Accordingly, the branch of plaintiff's motion seeking renewal was properly denied.
Furthermore, in order to vacate the December 7, 2004 order insofar as it granted defendant's cross motion upon plaintiff's default, plaintiff was required to demonstrate, inter alia, a reasonable excuse for its default (see Gironda v Katzen, 19 AD3d 644 [2005]; Liotti v Peace, 15 AD3d 452 [2005]; Abrams v City of New York, 13 AD3d 566 [2004]). Inasmuch as plaintiff failed to proffer a reasonable excuse as to why it did not oppose defendant's cross motion seeking an order compelling examinations before trial, the lower court properly denied that branch of plaintiff's cross motion seeking vacatur of the December 7, 2004 order.
Moreover, as noted by the Court of Appeals, "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). In the case at bar, the branch of defendant's motion which sought to compel depositions was granted on default and since plaintiff failed to obtain a stay of said order, plaintiff was obligated to produce one of its employees for an examination before trial (id.). Plaintiff's willful failure to produce an employee for the court-ordered deposition resulted in an additional motion by defendant to dismiss the complaint, thereby wasting scarce judicial resources, and such behavior cannot be tolerated (see Fair Price Med. Supply Corp. v
ELRAC Inc., 12 Misc 3d 126[A], 2006 NY Slip Op 50864[U] [App Term, 2d & 11th Jud Dists]). [*3]Accordingly, the order, insofar as reviewed, is affirmed.
Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
