Morris v Home Depot USA

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Morris v Home Depot USA 2012 NY Slip Op 32142(U) August 9, 2012 Sup Ct, Suffolk County Docket Number: 5201-06 Judge: Thomas F. Whelan 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 ORi)IOR COPY TNDEX No 5201-06 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: I-Ion] 1I0MAS F. WI-IELAN Justice ofthe Supreme Court MOTION DATE 7/1 1/12 ADJ. DATES 7/13/12 Mot. Seq. # 009 - Mot D CASE RESTORED TO ACTIVE Compl. ConY, Scheduled: 9/11/12 CASEDISP, No ---------------------------------------------------------------X JOliN MORRIS and TERESA MORRIS, Plainti±Is, BRODY, O'CONNOR & O'CONNOR Artys. For Plaintiffs 7 Bayview Ave. Northport, NY 11768 -against1I0ME DEPOT USA, Defendant. SIMMONS, JANNACE & STAGG Attys. For DeflThird-Party Plaintiff 75 Jackson Ave. Syosset, NY 11791 ---------------------------------------------------------------X HOME DEPOT USA, ThirdwParty Plaintiff, MAZZARA & SMALL, PC Attys. For Third-Party Defendant 800 Veterans Memorial Hwy. Hauppauge, NY 11788 -againstJ&J BUILDING MAlNTENANCE, INC., Third-Partv Defendant. ----------------------------------------:----------------------X Upon the following papers numbered 1 to_l_l _ read on this motion for leave to renew and/or reamue , Notice of Motion/Order to Show Cause and supporting papers -l..:...±...-; Notice of Cross Motion and SUPPoliing papers , Answering Affidavits and supporting papers 5-6; 7-8: 9-10: 1I , Replying Aftidavits and supporting papers _; Other prior order dated May 11,2012 ; and after hearing counsel in support and opposed to the motion on July 13,2012 it is, ORDERED that this motion (#009) by the plamtiffs for leave to renew and/or reargue prior applications \vhich culminated in an order dated May 11,2012, which denied the plaintiffs' application fora protective order against any and all appearances in New York by the injured plaintiff due to his alleged inability to travel here and granted motions by the defendant and third party for dismissal of the plaintiffs' complaint pursuant to CPLR 3126, is granted to the extent that reargument IS permitted; and it 15 further [* 2] Morris v Ilomc Depot Index No. 5201/2006 Page 2 ORDERED that upon reargument the court: I) adheres to its prior detennmation denying the plaintin·s' application ror a protective ordec 2) vacates those portions of the May 11,2012 order which granted the dismissal orthc plaintiffs' complaint pursuant to CPLR 3126, and denies the prior motions by the defendant and third party for such dismissal; and 3) grants the defendant's and third party defendant's alternativc demands for relief pursuant to CPLR 3124to the extent set forth belo\\': and it is further ORDERED that upon receipt oreopy of thIS order, the Clerk of the Calendar Department shall: I) remove the:marking of this action indicating "disposed" entered upon entry of the May 11,2012 order and thereafter 011 June 19, 2012 in the appearance screens of the court's electronic filll1g system: 2) restore this action to active status; and 3) schedule a compliance eonlcrence herein for Tuesday, September Ll, 2012. This personal injury action arises out of fall in front ofa Home Depot store that was in the final stages of its construction n January 19, 2004. The injured plaintiff was working as an electncian at the site and fell on ice in the parking lot under construction. Although the preliminary conference order of May 22. 2006 stated that the depositions of all panies were to be conducted in September of2006. with the physical examination of the plaintiff to follow within 45 days of his deposition, this schedule was not adhered to by the parties. The nature of the accident. the commencement of the third party action, the plaintiffs· residence in florida and the physical condition of the injured plaintiff and the defendant's inability 10 produce an agent with knowledge have all contributed to the delay in the prosecution of the claims ll1tcrposed herein. On March ]4,2008, a further discovery order was issued at a compliance conference in which issues presented in one or more then pending discovery motions were resolved by a stipulation of counsel. Therein, the cOUl1 directed that the deposition ofthe injured plaintilTbe held in Florida on .June 13,2008, with the costs of such deposition to be born by the plaintiffs. The defendant and third party defendants' nghts to conduct a physical examination of the injured plaintifTin New York, not less than 90 days prior to trial, were expressly reserved in the March 14,2008 so-ordered stipulation. The deposition of the injured plaintiff in Florida, as contemplated by the March 14, 2008 soordered stipulation. took place In April of 2008. Delays engendered by the defendant's inability to produce a wimess having knowledge of facts relevant to the issues raised by the pleadings prolonged the pace of other pre-trial proceedings. At a compliance conference held in September of2011, counsel again stipulated in writing to resolve pending discovery applications and further stipulated to complete the defendants' depositions by December 6, 2011. Defense counsel therein reiterated their reserved their rights to eonduel the physical examination of the plaintiff in New York. In or about October of2011, the plaintiffs served a ··supplemental" bill of particulars that contained no claims of ··continuing special damages and disabilities·· (see CPLR 3043). lnstead. this bill alleged an additional claimed violation of the Industrial Code Regulations upon which the plaintiffs rely to establish one of the several Labor Law claims for damages advanced in tbeir complaint and/or original bill of pm1iculars. By letter dated December l. 2011, counsel for thc defendant acknowledged receipt of said bill and echoed the claim of third party dcfendant's counsel that the assertion of the new liability claIm set forth in the "supplcmental" bill cntitkd thc de:fendants to a further deposition of the injured plaintiff. In addition, defendant's counsel [* 3] Moms v I fume Depot Index No. 520112006 Page 3 objected to the limited medical authorizations received from the plaintiffs and sought input rrom plaintiffs' counsel regarding the scheduling orthe physical examination of the injured plamtilThere in New York. A lollQ\v-up lener dated December 28. 2011 issued by defendant's counsel regarding the scheduling of the physical examinations of the il1jured plaintiff apparently went unanswered. By notice of motion dated January 25. 2912, the defendant moved (11006)for the dismissal orthe plaintiffs' complaint pursuant to CPLR 3126 or for an order compelling the further deposition or and appearance by the injured plaintiff at the physical examination referred to In counsel's prior correspondencl:. The third party defendant likewise moved (#007) by the interposition of a notice of cross motion dated February 14, 2012. The plaintifts' opposition to these applications were sct forth in cross moving papers (#008) in which they sought a protective order against any and all appearances in Ncw York by the injured pla111tiffdue to his alleged inability to travel here because ofsenous physical conditions affecting his back. neck and/or extemeities. By order dated May 11,2012. this court granted [he dismissal of the plaintiffs' complainl as demanded by the defendant and thir d party defendant in their motions. The court denied the plaintiffs'cross motion for a protective order and other relief. Said denial was based upon a finding of insufticlentmedical proof to support the injured plaintiff's claim that due to his physical condition. travel here to New York for purposes of participating in the physical examination contemplated by the prior orders entered herein and participation in the trial itself were not possible without an exposure to a high risk ofhann. The instant motion (#009) for renewal and/or reargument was interposed shortly after the issuance of said order. Such motion was marked submitted on July 13, 2012. after hearing counsel at oral argument thereon. Those portions of this motion wherein the plaintiffs seek renewal of their prior motion and those of the defendants are denied. Pursuant to CPLR 2221 (e), 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'· (Mello" II /zmir/igil. 88 AD3d 930. 931 NYS2d 667 [2d Dept 2011]; Siege/I) Mor!>'ey New Sq. Trails Corp., 40 i\D3d 960, 836 NYS2d 678[2d Dcpt 2007]). Here. the plaintifrs submit as an attachment to their moving papers. I a signed atlidavit of a Florida phYSician whose unsigned affirmation was anached to the plaintiffs' original moving papers. To the extent that this evidentiary material now presented constitutes a presentation of "new bets" within the contemplation of CPLR 2221(e). it does not wan'ant any change in the court's prior determination (see Peycke II Newport 1l1ediaAcquisition fl, fnc., 40 AD3d 722, 837 NYS2d 167 [2d Dept 2007]: Siegel v Morsey New Sq. Trails, Corp., 40 AD3d 960, supra: William!>'v Nanaa Med. efr .. 37 AD3d 594. 829 ),lYS2d 645 [2d Dept 20071: Giovanni v Moran. 34 AD3d 733, 823 NYS2d 911 j2d Dept 20061). In both the new affidavit and the prior affirmation uflhe Florida physician. said I The court declines 10 consider the voluminous evidentiary submissions and other material anaehed to the reply papers of plainliffs (see M(furisc/wt I' COli WI' of NII.WIII, 81 AD3d 793. 916 NYS2d 235 [2d Dcpt 20 III: AII.\·tate Im-. CO. I' f)(IIvkill.~. 52 AD3d 826. 861 NY$2d 391 12d Dept 2008J~ Jeffersoll I' Netll.'.i!, 44 AD3d 621, 843 NYS2d 158 [1d Dcpt 20(}?]). [* 4] Morris v Home Depot Index No. 5201/2006 Page 4 physician admits that the injured plamtifrs restriction on travel is limited to an inability to "endure the conditions involved with either air turbulence or prolonged road way conditions" Contrary to the contentions of the plaintiffs. the allidavit, likc the prior unsigned allirmation before the cOUr!,contains no medical proscription against travel by the injured plaintiffby modes oftTansport not statcd therein by the physician. No change in the court's prior determination regarding the insufficiency of proof on the issue of the injured's plaintiffs inability to travel to New York to engage in pre-trial proceedings and/or to give trial testimony is warranted by virtue oCthe plaintiffs submission of the June 4, 2012 affidavit of Marc. H. Feinberg. MD. The plaintiffs' demands for renewal of the prior applications determined in the court's May 11,2012 order are thus denied. Also denied are tht::plaintiffs' demands l"orreargument of their prior motion for a protective order against any appearances here in New York by the injured plaintiff. It is well settled law that motions for reargument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or the law or tor some other reason. mistakenly arrived al its delennlnation (see McDonald v Stroh , 44 AD3d 720. 842 NYS2d 727 [2d Ocpt 2007 J; see also Everhart v County of Nassau, 65 AD3d 1277, 885 NYS2d 765 [2d Dept 2009]; Pryor v Commol1wealth Land Title Ill. ¢ ¢. Co.. 17 A03d 434, 793 NYS2d 452 [2d Oept 2005]). CPLR 222 I , provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 (d][2]). A motion for leave to reargue is thus not one which provides an unsuccessful party with successive opportunities 10 reassert or propound the same arguments previously advanced. Nor is it one that provides a platform for the presentation of arguments ditTereDtfrom those already presented (see V. Veeraswamy Realty v YeJlom Corp., 7lAD3d 874,895 NYS2d 860 (2d Dcpt 2010]); Woody's Lumber Co., JIIC. v Jaymm Realty Corp., 30 AD3d 590,817 NYS2d 391 ["2dDept 2006]; Williams II Board of Educ. ofCi(J! School Dist. of New York City, 24 A03d 458, 805 NYS2d ] 26 r2d Oept 2005]; Simon v Mehrynri, J 6 AD3d 543, 792 NYS2d 543 [2d Ocpt 2005]). l'he plaintiffs' request for a protective order was described at oral argument by plaintiffs' counsel as a request Jor aj udicial "accommodation" by which Florida would be effectively designated as the venue of all outstanding pre-trial proceedings, including the physical examination oCthe injured plaintiff, and the venue of his trial testimony. Like the prior application. the instant application rests entirely upon claims that the debilitating physical condition of the injured plaintiff renders his travel to New York, by any mode of transportation. contrary to the orders of his physician and thus potentially harmful [0 the injured plaintiff's condition. As indicated above. however, these claims are not supported by sufficient medical proof that the injured plaintiff cannot withstand any mode of travel to New York. The plaintiffs thus failed to dcmonstrate that the court mistakenly arrived at its previous determination to deny thc application. Reargument of the plaintiffs' prior motion for a protective order is thus denied However, the court tlnds that the plaintiffs arc entitled to reargument regarding those portions ol"the defendants' prior mOlions wherein they sought the dismissal of the plaintiffs' complaint pursuant to CPLR 3126. From the record adduced on this motion, it appears that the court misunderstood that the deposition of the third party defendant had not been completed: that no written nolIcc scheduling the physical examination of the plaintiff before physicians designated by the defendants had issued [* 5] Morris v I-lome Depot Index No. 520112006 Page 5 and thus no default in appeanng at a scheduled examination on the pali or the injured plaIntiff had occurred. There was a simllar absence of any statutory notice, stipulation or order in which rhe further deposition ol'the injured plamtiffwas properly scheduled in by the defendants following their receipt o1'the plaintiffs' "supplemental" bill of particulars in October 01'20 11. These circumstances warrant the granting o1'remgument limited to those portions of the defendants' prior motions for dismissal of the plumtiffs' complaint pursuant to CLR 3126 that were granted by the order of thiS court dated May 11. 2012 and the defendants' alternative demands for relief pursuant to CPLR 3124 \vhich were not addressed in said order. Upon the limited reargument granted, the court hereby vacates the dismissal of the plaintiffs' compla1l1t set forth 111ts May 11,20] 2 order and recalls the rnarkmg of this action as "disposed/result i of motion" The defendants' prior applications for relief pursuant to CPLR 3126 are hereby denied, as the plaintiff" sutliciently rebutted the defendants' showing of a willful default on the part of the injured plamtiffin appearing for the physical examination directed by the prior orders of the court (see Bemllrdis v 1()Wll of Islip. 95 ADJd 1050,944 NYS2d 626 [2 !lept 2012]). Also denied are the defendants' requests for an order directing the Il1Jured plaintiff to appear for a further deposition here in Ne\v York. The record adduced on this motion reveal that the defendants' original submissions Lliled to sufficiently demonstrate an entitlemcnt to a fmiher deposition of the injured plaintiffslllce service of an amended or supplemental bill of particulars does not necessarily give rise to a right to further discovery (see CPJ ,R3042, 3043). Although it is labeled a "supplemental" bill of particulars, the true nature of the October 6, 2011 bill served by the plaintiffs is that of an amended bill of particulars as it does not contain any updated claims of "continuing special damages and disabilities" (see CPLR 3043; Kraycar v Monahan, 49 AD3d 507, 856 NYS2d 123 [2d Dept 2008]). Instead, thc subject bill sets f0l1h an additional theory of liability in support of the plaintiffs' claims for recovery under Labor Law § 241(6) that is predicated upon a violation §23-1.7(d) of the Industrial Code (see Delaltaye v Saini Auus School, 40 AD3d 679, 836 NYS2d 233 [Dept 20071). Although the failure to identiJy any violation of a spccific provision of the State Industrial Code in the plaintiffs' complaint or bill of particulars precludes the attachment ofliability under Labor Law ~ 241 (6), a belated assertion of an Industrial Code violation not involving new factual allegations or foreign theories which is not prejudicial to the defendants due to their possession of sufficient prior notice of the claim is not fatal to a Labor Law § 241 (6) claim (see Kowalik v Lipshutz, 81 AD3d 782, 917 NYS2d 251 [2d !lopt 2011 J). Here the plaintiffs' claims for recovery are premised upon a fall attributable to an accumulation of snow or iee outside the Home Depot store that was ill the last stages of construction just prior to its opening. Plaintiffs' orig1l1albill asserted two violations of two sections of 12 NYCRR 23 in support of the 1l1juredplaintiffs pleaded claims for recovery of damages under Labor Law ~ 241 (6). The plaintiff<;' amended billmcludes a nev,' claim of a purported violation of § 23-1. 7(d) of the Industrial Code, WhlCh 15 entitled "Slipping Hazards" and requires, among other things, employers to remove Ice, sno\v, water, grease or other foreign substances fro111 !loors, passageways, walkways and elevated working surfaces so as to provide safe j~)Otingfor workers. In light of the prior pleadings and amplification thereoC the assertIOn of this additlOnal section of the Industrial Code has not been shown by the defendant or t1md party defendant 10 have surprised or prejudiced them in any way as to warrant a further deposition of the injured plaintiff Those portions of the defendants' prior motions for an order directlllg a tlniher [* 6] Morris v Home Depot Index No. 520112006 Page 6 deposition of the injured plaintiff due to plaintiffs' service orits October 6, 2011 "supplemental" bill of particulars are thus denied. In contrast, the defendants' alternative demands for an order compelling the injured plaintiff to appear in New York for a physical examination conducted by the defendants' duly designated physicians are granted pursuant to CPLR 3124. The injured plaintiff's appearance at a physical examination in this State has long been the subject of prior orders of this court and of continuing demands therefor by the defendant and third party defendant. The plaintiffs failed to demonstrate an entitlement to an order providing a different venue for such examination. The designation of the defendants' examining physicians shall be made on or before September 7, 2012,as the scheduling of such examination shall be the subject of a fmiher order that shall issue at the next compliance conference date herein scheduled for September 11, 2012 at 9:30 am. Upon receipt of a copy of this order, the Clerk of the Calendar Department shall remove the "disposed" marking previously entered in the motion and appearance screen of the court's electronic filing system, upon doing so, shall restore this action to active status. The clerk shall further schedule (j compliance conference herein for the date of September 11,2012. Counsel arc directed to appear on that date rcady for such conference. DATED:

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