VELASQUEZ v. E.L.M. General Construction Corp., third-party defendant-appellant. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party plaintiff and the third-party defendant separately appeal from (1) an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated July 23, 2024, and (2) an order of the same court dated November 8, 2024.  The order dated July 23, 2024, insofar as appealed from, granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to compel the defendant third-party plaintiff to disclose certain video surveillance footage and thereupon, conditionally struck the answer of defendant third-party plaintiff.  The order dated November 8, 2024, insofar as appealed from, denied that branch of the motion of the defendant third-party plaintiff which was for leave to renew his opposition to that branch of the plaintiff's prior motion which was pursuant to CPLR 3126 to compel him to disclose certain video surveillance footage, in effect, upon reargument, adhered to the determination in the order dated July 23, 2024, granting that branch of the plaintiff's prior motion, and, in effect, denied that branch of the motion of the defendant third-party plaintiff which was to vacate so much of the order dated July 23, 2024, as conditionally struck his answer.

ORDERED that the appeals by the third-party defendant are dismissed, without costs or disbursements, as the third-party defendant is not aggrieved by those portions of the orders appealed from (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the appeal by the defendant third-party plaintiff from so much of the order dated July 23, 2024, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3126 to compel the defendant third-party plaintiff to disclose certain video surveillance footage is dismissed, without costs or disbursements, as that portion of that order was superseded by so much of the order dated November 8, 2024, as was made, in effect, upon reargument;  and it is further,

ORDERED that the appeal by the defendant third-party plaintiff from so much of the order dated July 23, 2024, as conditionally struck his answer is dismissed, as academic, without costs or disbursements, in light of our determination of the appeal by the defendant third-party plaintiff from the order dated November 8, 2024;  and it is further,

ORDERED that the order dated November 8, 2024, is modified, on the law, by deleting the provision thereof, in effect, denying that branch of the motion of the defendant third-party plaintiff which was to vacate so much of the order dated July 23, 2024, as conditionally struck his answer, and substituting therefor a provision granting that branch of the motion;  as so modified, the order dated November 8, 2024, is affirmed insofar as appealed from by the defendant John Kelly, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he fell from a ladder while power washing the home of the defendant third-party plaintiff, John Kelly.  The plaintiff was employed by the third-party defendant, E.L.M. General Construction Corp. (hereinafter E.L.M.).

On January 26, 2024, the plaintiff served a discovery demand upon Kelly, seeking, inter alia, video surveillance footage of the area where the accident occurred.  On May 17, 2024, Kelly provided the plaintiff with video surveillance footage of the accident itself but not, as the plaintiff had requested, the time period before the accident.

On July 2, 2024, the plaintiff moved, among other things, pursuant to CPLR 3126 to compel Kelly to disclose the video surveillance footage from prior to the accident, arguing that it was relevant to determine whether Kelly provided a power washer and ladder.  By order dated July 23, 2024, the Supreme Court, inter alia, granted that branch of the plaintiff's motion and thereupon, directed that Kelly provide the complete surveillance footage by August 23, 2024, or his answer would be stricken.

Thereafter, Kelly moved for leave to renew and reargue his opposition to that branch of the plaintiff's prior motion which was to compel him to disclose additional video surveillance footage and to vacate so much of the order dated July 23, 2024, as conditionally struck his answer.  In an order dated November 8, 2024, the Supreme Court denied that branch of Kelly's motion which was for leave to renew.  The court granted reargument, but, in effect, upon reargument, adhered to its determination in the order dated July 23, 2024, granting that branch of the plaintiff's prior motion which was to compel him to disclose additional video surveillance footage.  Further, the court, in effect, denied that branch of Kelly's motion which was to vacate so much of the order dated July 23, 2024, as conditionally struck his answer.

Kelly and E.L.M. separately appeal from the orders dated July 23, 2024, and November 6, 2024.

“A person is aggrieved within the meaning of CPLR 5511 ‘when he or she asks for relief but that relief is denied in whole or in part,’ or ‘when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part’ ” (Estella v. Val Auto, LLC, 221 A.D.3d 967, 968, 201 N.Y.S.3d 127 [emphasis omitted], quoting Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132;  see CPLR 5511).  Here, the order dated July 23, 2024, granted relief to the plaintiff against Kelly, and the order dated November 8, 2024, denied Kelly relief.  Since E.L.M., a third-party defendant in the third-party action commenced by Kelly, is not aggrieved by those orders, its appeals must be dismissed (see CPLR 5511;  Price v. 7th Gear Corp., 244 A.D.3d 1264, 245 N.Y.S.3d 379).

The Supreme Court should have granted that branch of Kelly's motion which was to vacate so much of the order dated July 23, 2024, as conditionally struck his answer.  “A conditional order of preclusion requires a party to provide certain discovery by a date certain, or face the sanctions specified in the order” (Matter of Metro–North. Train Acc. of Feb. 3, 2015, 178 A.D.3d 929, 931, 112 N.Y.S.3d 530 [internal quotation marks omitted];  see Torres v. Dayton Hudson Corp., 171 A.D.3d 827, 828, 95 N.Y.S.3d 830).  “If the party fails to produce the discovery by the specified date, the conditional order becomes absolute” (McIntosh v. New York City Partnership Dev. Fund Co., Inc., 165 A.D.3d 1251, 1252, 87 N.Y.S.3d 637 [internal quotation marks omitted];  see Wolf Props. Assoc., L.P. v. Castle Restoration, LLC, 174 A.D.3d 838, 841, 106 N.Y.S.3d 313).  “To be relieved of the impact of the conditional order ․, a party must demonstrate a reasonable excuse for their failure to comply with the conditional order and the existence of a potentially meritorious claim or defense” (Winters v. City of New York, 234 A.D.3d 805, 807, 227 N.Y.S.3d 119).  “A party may not be compelled to produce or sanctioned for failing to produce information which he [or she] does not possess” (Robert v. Azoulay Realty Corp., 209 A.D.3d 781, 785, 176 N.Y.S.3d 137 [alteration and internal quotation marks omitted] ).

Here, the record demonstrates that Kelly complied with the order dated July 23, 2024, by demonstrating that the additional video surveillance footage sought by the plaintiff did not exist.  Moreover there is no evidence in the record that Kelly willfully or contumaciously failed to comply with his discovery obligations (see CPLR 3120[1][i];  Robert v. Azoulay Realty Corp., 209 A.D.3d at 785–786, 176 N.Y.S.3d 137;  McGroarty v. Long Is. Coll. Hosp., 37 A.D.3d 431, 431, 829 N.Y.S.2d 615).  Additionally, Kelly demonstrated a potentially meritorious defense to the action (see Pugliese v. Mondello, 67 A.D.3d 880, 881, 891 N.Y.S.2d 414).

The Supreme Court properly denied that branch of Kelly's motion which was for leave to renew his opposition to that branch of the plaintiff's prior motion which was to compel disclosure of additional video surveillance footage.  A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination,” and “shall contain reasonable justification for the failure to present such facts” (CPLR 2221[e][2],[3];  see Agostinacchio v. Jofaz Transp., Inc., 238 A.D.3d 691, 694, 235 N.Y.S.3d 61).  Here, Kelly failed to offer a reasonable justification for failing to submit the new facts that he relied upon in opposition to that branch of the plaintiff's prior motion (see CPLR 2221[e][3] ).

In light of our determination, Kelly's remaining contentions need not be reached.

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.