MENDEZ v. QUEENS PLUMBING SUPPLY INC MP (2006)

Plaintiff Andrea Mendez commenced this action seeking to recover money damages for personal injuries sustained during an automobile accident.   The accident happened when a vehicle operated by defendant I. Sanchez-Gonzalez and owned by defendant Queens Plumbing Supply, Inc. (hereinafter referred to as “Vehicle No. 1 defendants”) collided with a vehicle operated by defendant Francisco R. Martinez and owned by defendant MP Limo Services Corp. (hereinafter referred to as “Vehicle No. 2 defendants”).   At the time of the accident, plaintiff Andrea Mendez was riding as a passenger in Vehicle No. 1. Plaintiff now moves for partial summary judgment on liability against Vehicle No. 2 defendants, relying exclusively upon a Compliance Conference Order which conditionally precluded testimony of Vehicle No. 2 defendant driver (Francisco R. Martinez) in the event he failed to appear at the scheduled examination before trial (“EBT”), which he did.

Discussion

 As a threshold matter this Court rejects Vehicle No. 2 defendants' argument that the Compliance Conference Order of preclusion was waived when plaintiff filed and served the Note of Issue and Certificate of Readiness, certifying that discovery had been completed despite Vehicle No. 2 defendant's failure to appear at the EBT. Vehicle No. 2 defendants have not provided, nor has this Court found, any authority for such proposition.   On the contrary, it is well established, that when a party fails to comply with a conditional order of preclusion, the order becomes absolute.   See Goldsmith Motors Corp. v. Chemical Bank, 300 A.D.2d 440, 751 N.Y.S.2d 547 (2nd Dept.2002);  Jenkinson v. Naccarato, 286 A.D.2d 420, 730 N.Y.S.2d 244 (2nd Dept.2001);  Kepple v. J. Hill Associates, 275 A.D.2d 299, 712 N.Y.S.2d 405 (2nd Dept.2000);  Ha v. B.H.N.V. Realty Corp., 273 A.D.2d 458, 712 N.Y.S.2d 358 (2nd Dept.2000). Moreover, it has long been held that:  “Orders of preclusion may not be ignored with impunity and they may be vacated only upon the showing of ‘extraordinary and exceptional circumstances' ” See Jones v. Bryce, 76 A.D.2d 966, 967, 429 N.Y.S.2d 68 (3rd Dept.1980).   In order to avoid the adverse impact of an order of preclusion, the party seeking vacatur must establish, inter alia, a reasonable excuse for the default.   See Correa v. Kewal, 281 A.D.2d 448, 721 N.Y.S.2d 557 (2nd Dept.2001);  Boland v. Biordi, 251 A.D.2d 524, 673 N.Y.S.2d 921 (2nd Dept.1998);  Vanek v. Mercy Hospital, 162 A.D.2d 680, 557 N.Y.S.2d 114 (2nd Dept.1990).   Under the circumstances herein, vacatur of the preclusion order is unwarranted since Vehicle No. 2 defendants make no attempt to explain defendant driver's failure to appear at the EBT.

 Nevertheless, this Court rejects plaintiff's argument that the Compliance Conference order of preclusion entitles him to ipso facto grant of partial summary judgment on liability against Vehicle No. 2 defendants.   Summary judgment may be granted solely on the basis of an order of preclusion.  Le Frois Foods Corp. v. Policy Advancing Corp., 59 A.D.2d 1013, 1014, 399 N.Y.S.2d 742 (4th Dept.1977);  Vandoros v. Kovacevic, 79 Misc.2d 238, 360 N.Y.S.2d 367 (App. Term, 2d Dept.1974).   However, summary judgment based on an order of preclusion is not automatic in the First Department.   See, Israel v. Drei Corp., 5 A.D.2d 987, 173 N.Y.S.2d 360, rehearing denied, 6 A.D.2d 1005, 178 N.Y.S.2d 212 (1st Dept.1958).   Rather, the Court must analyze the effect of the preclusion order in each particular case.   See e.g. Crump v. New York, 67 A.D.2d 634, 412 N.Y.S.2d 148 (1st Dept.1979);  Jawitz v. British Leyland Motor, Inc., 42 A.D.2d 536, 344 N.Y.S.2d 769 (1st Dept.1973).

Here, the explicit language of the Compliance Conference Order conditionally mandates the preclusion of Vehicle No. 2 defendant driver's (Martinez) trial testimony upon his failure to appear at the scheduled EBT.   It does not, however, mandate the striking of defendant Martinez's answer.   Therefore, Vehicle No. 2 defendants are not precluded from establishing the affirmative defense of comparative negligence asserted in the answer with regard to the alleged culpable conduct of Vehicle No. 1 defendants, which may be established through the cross examination of plaintiff's and Vehicle No. 2 defendant's witnesses.   See Ramos v. Shendell Realty Group, Inc., 8 A.D.3d 41, 777 N.Y.S.2d 644 (1st Dept.2004) (order of preclusion of trial testimony based upon the failure to submit to an EBT did not preclude affirmative defense of comparative negligence).

 The purpose of the preclusion order is to make the non-offending party whole.   See Northway Engineering v. Felix Indust., 77 N.Y.2d 332, 567 N.Y.S.2d 634, 569 N.E.2d 437 (1991).   Whatever disadvantage plaintiff suffered as a result of Vehicle No. 2 defendant driver's failure to submit to an examination before trial was cured when the Compliance Conference Order removed his testimony from the trial.   To further preclude Vehicle No. 2 defendant from asserting defenses which can be established by evidence that has not been precluded deprives defendant of his day in court and gives plaintiff more relief than is warranted by defendant's failure to submit to an EBT.

 Vehicle No. 2 defendants, however, are not satisfied with the denial of plaintiff's motion for partial summary on liability based upon the aforementioned preclusion order.   Vehicle No. 2 defendants cross move for summary judgment dismissing the claims asserted against them on the ground that the evidence establishes that the cause of the accident was due solely to the negligent driving of Vehicle No. 1 defendant driver (I. Sanchez Gonzalez).   What Vehicle No. 2 defendants failed to reveal to this Court is that they had previously unsuccessfully moved for summary judgment, albeit on the ground that plaintiff did not suffer a serious injury.

 It is well settled that successive motions for summary judgment should be denied where the motion is based upon grounds and factual assertions which could have been raised on the first motion.   See, Manning v. Turtel, 135 A.D.2d 511, 511-512, 522 N.Y.S.2d 13 (2nd Dept.1987);  Taylor v. Brooklyn Hospital, 187 A.D.2d 714, 715, 590 N.Y.S.2d 304 (2nd Dept.1992);  Baron v. Charles Azzue, Inc., 240 A.D.2d 447, 449, 658 N.Y.S.2d 135 (2nd Dept.1997).   Unless a party is able to demonstrate that the evidence it is submitting is newly discovered, successive summary judgment motion are proscribed.   See, Davidson Metals Corp. v. Marlo Development Co., 262 A.D.2d 599, 691 N.Y.S.2d 898 (2nd Dept.1999);  Staib v. City of New York, 289 A.D.2d 560, 561, 735 N.Y.S.2d 799 (2nd Dept.2001);  Broer v. Smith, 240 A.D.2d 528, 529, 658 N.Y.S.2d 447 (2nd Dept.1997)

 In this case, Vehicle No. 2 defendants' current motion is based on grounds and factual assertions that could have been raised in the first motion for summary judgment on the threshold issue of “serious injury”.   In any event, the cross motion is denied on the merits since movant-defendants have failed to meet their burden.   For instance, the police reports submitted by movant-defendants constitute inadmissible hearsay and thus fail to establish the manner in which the automobile accident occurred.   Cf. Batista v. Santiago, 25 A.D.3d 326, 807 N.Y.S.2d 340 (1st Dept.2006);  Aetna Cas. & Sur. Co. v. Island Transp., 233 A.D.2d 157, 649 N.Y.S.2d 675 (1st Dept.1996);  Conners v. Duck's Cesspool Serv., 144 A.D.2d 329, 533 N.Y.S.2d 942 (2nd Dept.1988).   Similarly, to the extent that the police reports contain statements made by Vehicle No. 2 defendant driver (Martinez,) they are inadmissible since, as explained above, Martinez has been precluded from testifying at trial based upon his failure to submit to an EBT. Nor can Vehicle No. 2 defendants rely upon plaintiff's deposition testimony, which fails to establish as a matter of law that the cause of the car accident was due solely to the negligent driving of Vehicle No. 1 defendant I. Sanchez-Gonzales.

Conclusion

For the foregoing reasons, it is hereby

ORDERED that plaintiff's motion, seeking partial summary judgment on liability, against Vehicle No. 2 defendants, is denied;  and it is further

ORDERED that Vehicle No. 2 defendants' motion, seeking summary judgment dismissing the claims asserted against them, is denied.

This constitutes the Decision and Order of this Court.

DIANNE T. RENWICK, J.