Pantaleon v St. Joseph of the Holy Family School

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Pantaleon v St. Joseph of the Holy Family School 2013 NY Slip Op 32319(U) September 25, 2013 Sup Ct, New York County Docket Number: 101667/10 Judge: Jeffrey K. Oing Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 101112013 SUPRE c PRESENT: Justice . _ Index Number : 101667/2010 PANTALEON, MILAGROS vs. SAINT JOSEPH OF HOLY SEQUENCE NUMBER : 003 RENEWAL The following papers, numbered 1 to Notice of MotionlOrder to Show Cause INDEX NO. MOTION DATE MOTION SEQ. NO. , were read on this motion to/for -Affidavits - Exhibits INo(+ IW s ) . IW s ) . Answering Affidavits - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion i s OCT 0 1 2013 N W YORK E CLERK S OFFIR mm 7 r ,J.S.C. ..................................................................... CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS:0GRANTED 0DENIED 1. CHECK ONE: 3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER DO NOT POST f?$ NON-FINAL DISPOSITION 0GRANTED IN PART *OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O R K : IAS PART 48 ____________________---_-_---_----__---- X MILAGROS PANTALEON, individually and as mother and natural guardian of EMILLYAH JEFFERSON Index No.: 101667/10 Plaintiffs, - M t n S e q . No. 003 against - DECISION AND ORDER ST. JOSEPH OF THE HOLY FAMILY SCHOOL, Defendant. 1 JEFFREY K. O I N G , J. : CCT 0 1 2013 This personal injury a t $ c-@ of a 2008 incident in 9 tl U. which the 4 year old infant plaintiff Emillyah Jefferson (the "infant plaintiff") sustained injuries when she fell off the stairs of a slide at a Central Park playground due to the allegedly negligent supervision of defendant St. Joseph of the Holy Family School while on a school trip. In motion sequence no. 002, defendant moved to dismiss this action for failure to prosecute. In that regard, the record demonstrates that the infant plaintiff repeatedly failed to appear for a court ordered independent medical examination ("IME"). In a decision and order, entered October 18, 2012, this Court granted the motion dismissing this action without prejudice. Plaintiffs now move for renewal of this Court's decision and order. To begin, the motion is timely insofar as a renewal motion does not have time restrictions upon which it must be made (CPLR [* 3] Page 2 of Index No. 101667/2010 Mtn S e q . No. 003 5 2221(e)). As indicated, the Court dismissed this action due to plaintiffs' failure to comply with four separate written Orders of this Court and one oral directive from Administrative Judge Sherry Klein-Heitler to produce the infant plaintiff for an IME In support of their motion, plaintiffs argue that the renewal motion should be granted for the following reasons: (1) at the time that plaintiffs' opposition to the dismissal motion was submitted, the whereabouts of the infant: plaintiff's mother, Milagros Pantaleon, were unknown, and (2) within days following this Court's decision and order dismissing the instant case -- Pantaleon contacted her counsel's office to purportedly explain why she could not be found and why the infant plaintiff was never brought to any of the scheduled IME appointments (Cohen Affirm., ¶ 3; Pantaleon Aff ., ¶ 6, attached to Cohen Aff., E x . D) . She explained that "personal troubles" forced her from her apartment for approximately two years (Pantaleon Aff., ¶ 4). She also stated that she did not "alert [her] attorneys to [her] move as [she] did not have a permanent living situation" and explained that her "cell phone was often disconnected or turned off" ¶ 4). (L, Pantaleon claims that she only found out on or about October 12, 2012 that her counsel was looking for her when she "received notice from Emillyah's school that the lawyers at Goidel & Siegel, LLP needed to speak to [her]" (L, ¶ 6). [* 4] Page 3 of Index No. 101667/2010 M t n S e q . No. 003 In opposition to the instant motion, defendant argues that plaintiffs fail to provide any detail explaining the circumstances that resulted in the loss of communication between counsel and Pantaleon. Nor does the record demonstrate any reasonable excuse or proof of meritorious claim to warrant reversal of this Court s Order dismissing the complaint. Additionally, defendant points to the fact that plaintiffs counsel s affirmation in support of this motion fails to provide any information about the efforts made by counsel s firm to locate Pantaleon in the 22 months that lapsed from December 30, 2010, the date defendant first designated the infant plaintiff s IME, until this Court s dismissal of the complaint in October 2012. The record indicates that plaintiffs counsel did place a telephone call on an unspecified date to the infant plaintiff s school (Cohen Affirm., ¶6, fn 1). Plaintiffs also submit an affidavit from Simon Berezhansky, a paralegal in the office of Goidel & Siegel, LLP, who details the efforts he made to locate Pantaleon on July 12, 2012, the date in which this action came before Justice Heitler a second time (Cohen Affirm., Ex. C). A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion ( C P L R 5 [* 5] . Page 4 of Index No. 101667/2010 M t n S e q . No. 003 2221[e]). 5 Renewal may be properly granted when a witness, unavailable at the time of the original motion, becomes available (Szentmiklosv v County Neon Sian Corp., 276 AD2d 406, 406-07 [lst Dept 20001 ) . Here, renewal is appropriate because Pantaleon could not be located at the time of the original motion to dismiss, which was based on the infant plaintiff s nonappearance at scheduled IMEs. The reason for the nonappearance of the infant plaintiff, who at that time was 8 years old, was due to the mother s absence. explanation is reasonable. This Indeed, to penalize the 8 year old infant plaintiff for her mother s failure to maintain contact with counsel would not be proper, particularly where the dismissal is not based on substantive grounds (Tishman Constr. Corp. v Citv of New York, 280 AD2d 374 [lst Dept 20011). This Court, however, is mindful of the mother s persistent past inability to comply with its numerous orders for the infant plaintiff to be produced for an IME, although albeit the failures may have been beyond her control. Accordingly, the motion to renew is granted on the condition that the infant plaintiff, Emillyah Jefferson, be produced for an IME within sixty (60) days after service of a copy of this order with Notice of Entry. In the event that plaintiff mother fails to comply with this directive, defendant s counsel shall submit a proposed order on notice dismissing this action with prejudice. [* 6] Page 5 o f Index No. 101667/2010 Mtn Seq. No. 003 5 E Accordingly, it i s ORDERED t h a t p l a i n t i f f s m o t i o n f o r l e a v e t o renew i s granted; and it i s f u r t h e r ORDERED t h a t upon r e n e w a l , Order, d a t e d O c t o b e r 1 2 , 2 0 1 2 , t h e Court vacates i t s p r i o r and d e n i e s d e f e n d a n t s motion t o dismiss f o r l a c k of p r o s e c u t i o n , and i t i s f u r t h e r ORDERED t h a t t h e i n f a n t p l a i n t i f f , Emillyah J e f f e r s o n , shal.1 b e p r o d u c e d f o r a n IME w i t h i n s i x t y ( 6 0 ) d a y s a f t e r s e r v i c e o f a copy o f t h i s o r d e r w i t h n o t i c e o f e n t r y ; a n d i t i s f u r t h e r ORDERED t h a t i n t h e e v e n t t h a t p l a i n t i f f s f a i l t o comply with t h i s d i r e c t i v e defendant s c o u n s e l s h a l l submit t o P a r t 48 a p r o p o s e d o r d e r on n o t i c e d i s m i s s i n g t h i s a c t i o n w i t h p r e j u d i c e ; and i t i s f u r t h e r ORDERED t h a t upon s e r v i c e o f a c o p y o f t h i s o r d e r w i t h n o t i c e o f e n t r y upon t h e C l e r k o f T r i a l S u p p o r t (Room 1581, t h e C l e r k i s r e s p e c t f u l l y d i r e c t e d t o r e s t o r e t h i s a c t i o n t o P a r t 48; and i t i s f u r t h e r ORDERED t h a t t h e p a r t i e s a p p e a r f o r a s t a t u s c o n f e r e n c e i n Room 2 4 2 , 6 0 C e n t r e S t r e e t , on December 11, 2 0 1 3 , Dated: 25 r3 a t 10 a.m. OCT 0 1 2013 7 . HON. JEFFREY K . OING, J.S.C.

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