Brice v Adult Resources Ctr., Inc.

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Brice v Adult Resources Ctr., Inc. 2020 NY Slip Op 34090(U) December 10, 2020 Supreme Court, Kings County Docket Number: 509796/18 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 12/11/2020 02:48 PM INDEX NO. 509796/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/11/2020 At an IAS Term, Part 57 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brookly11, New York, on the l01h day ofDece1nber, 2020. PRESENT: HON. LAWRENCE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X YVES ElR!CE, Plaintiff, Index No. 509796/18 - against ADUL1· RESOURCES CENTER, INC. and CHUKWUEMEKA NI<.UME, Defendants. - - - - -- - - - - - -- - - -- - -- - - - - - - - - -- - - - --X ·rhe following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/ Petition/Cross Motio11 and Affidavits (Affirmations) Annexed,_ _ _ __ 28-37 Affidavits (Affirmations) Opposition, _ _ __ 39-42 Upon the foregoing papers in this action for personal injuries allegedly sustai11ed in an auton1obile accident, plaintiff Yves Brice (Brice) moves (in motion sequence [mot. seq.] three) for an order: (I) vacating this court's July 31, 2020 order issued on default, 'vhich precluded Brice's testi1nony absent good cause (Preclusion Order), or, alternatively (2) determining that good cause has been demonstrated by Brice in his attempts to satisfy all prior court orders. According to a December 4, 2019 Central Compliance Part (CCP) conference order, Brice was required to serve a bill of particulars and responses to defendants' 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/11/2020 02:48 PM INDEX NO. 509796/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/11/2020 combined de1nands for discovery by January 6, 2020. The record reflects that Brice, on January 3, 2020, served a verified bill of particulars and responses to defendants' demand for discovery and inspection. On or about June 18, 2020, defendants moved to strike Brice's complaint based on his alleged failure to respond to their discovery demands. By the July 31, 2020 Preclusion Order, this court granted defendants' unopposed discovery inotion "to the extent that plaintiff is precluded from testifying at trial or submitting [an] affidavit in any dispositive tnotion unless good cause [is] shown by motion of plaintiff." In addition, the Preclusion Order further states that: "Plaintiff did not provide bill of particulars nor any authorizations or dis_covery responses, notwithstanding demands for same and prior preliminary conference order; compliance conference order of 12/4/19 and good faith demands; nor did plaintiff submit any opposition to the motion or seek additional time to comply." Brice now 1noves to vacate the Preclusion Order on the ground that there ts a '·reasonable excuse') for Brice's default based on law office failure. Brice's counsel affirms that: "Jllaintiffs counsel maintains a calendaring syste1n whereby court appearances are retrieved from the Court e-track system and subsequently inputted in our daily calendar one week in advance. As a result of an oversight in our office, the Court appearance for the instant inatter was never placed in our daily calendar, and as a result, our office was not aware of the return date of defendants' motion. As a result, our office failed to oppose or otherwise appear for defendants' motion. 2 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/11/2020 02:48 PM NYSCEF DOC. NO. 45 INDEX NO. 509796/2018 RECEIVED NYSCEF: 12/11/2020 * * * "Your Affirmant's failure to oppose defendants' inotion was not willful or intentional. It was solely due to law office failure, in that our office failed to properly calendar the matter which resulted in the motion return date not being displayed in our office appearance calendar." Brice's counsel asse1is that "[s]ince there is no evidence of any willful or contumacious behavior on the part of the plaintiff or plaintiffs counsel, he should be permitted to pursue his claim for personal injuries as against the defendants." In addition, Brice submits an affidavit of facts regarding the automobile accident to establish that he has a meritorious clai1n for negligence against defendants. Brice's counsel submits a copy of Brice's verified bill of particulars and responses to defendants' discovery demands that were served upon defendants on January 3, 2020, to demonstrate that Brice had complied with the December 4, 2019 CCP order. Brice's counsel also affirms that Brice served an updated bill of particulars and further responses to defendants' discovery de1nands with updated inedical records and authorizations on or about August 18, 2020, subsequent to the July. 31, 2020 Preclusion Order. Finally, Brice's counsel contends that defendants' discovery inotion sl1ould have been denied because defense counsel failed to make a good faith effort to resolve the underlying discovery issue before resorting to motion practice, as required by 22 NYCRR § 202.7 (a) (2). Defendants, in opposition, assert that Brice's motion should be denied because he 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/11/2020 02:48 PM NYSCEF DOC. NO. 45 INDEX NO. 509796/2018 RECEIVED NYSCEF: 12/11/2020 has not shown good cause why he failed to provide discovery responses or sub111it opposition to defendants' prior motion. Defense counsel contends that it did not receive Brice's verified bill of particulars and responses to defendants' discovery demands that Brice's counsel clai1ns to have served on January 3, 2020. However, defense counsel admits that she received a bill of particulars from Brice on or about August 20, 2020. Defense couns_el contends that Brice's motion to vacate should also be denied because Brice failed to establish a 1neritorious cause of action. It is well-settled that "[a] trial court has the discretion to grant a motion to vacate its own order in the interest of justice" (Armstrong Trading, Ltd. V MBM Enterprises, 29 AD3d 835, 836 [2006]). Furthennore, where a default in appearing in court results from !aw office failure, the court may "exercise its discretion in the interest of justice to excuse delay or default ... "pursuant to CPLR 2005 (see JP Morgan Chase Bank, NA. v Russo, 121 AD3d 1048, 1049 [2014]). Here, in the court's discretion, Brice's motion to vacate the Preclusion Order is granted since Brice's default was based on law office failure, his default was not willful and he has demonstrated his co1npliance with discovery. Accordingly, it is hereby ORDERED that Brice's motion (in 1hot. seq. three) is granted, and this court's July 31, 2020 Preclusion Order, entered on August 6, 2020, is hereby vacated. This constitutes the decision and order of the cou11. ENTER, ~ J. Sfl~ . I Justice Lawrence Knipe 4 4 of 4

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