CARTER v. Emma Pelgrino, Defendant. (2020)

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branch of plaintiff's motion seeking to restore the action to the calendar is denied without prejudice to renewal in accordance with this decision and order.

In December 2008, Dianne Richards commenced this action in the Supreme Court, Kings County, to recover for injuries she had sustained when a kitchen cabinet had fallen off a wall and caused her to fall at premises owned, operated, managed and/or controlled by R.P. Stellar Riverton, LLC and Stellar Management, LLC (defendants). After discovery orders had been entered into and not complied with, the Supreme Court, in an October 2014 order, granted plaintiff's motion to strike defendants' answer to the extent of precluding defendants from presenting evidence on the issue of liability. In September 2016, the matter was transferred to the Civil Court pursuant to CPLR 325 (d).

In August of 2017, the parties were ready for trial, but the matter was struck from the calendar because Dianne Richards was in a coma. Shortly thereafter, Dianne Richards died. After Glendora J. Carter (plaintiff) was appointed as administrator, she moved to be substituted as plaintiff in the action and to restore the matter to the calendar. Defendants opposed the motion only to the extent that they wanted to conduct further discovery with respect to Dianne Richard's unrelated medical condition, which had impacted her enjoyment of life. The Civil Court granted plaintiff's motion. Defendants appeal, as limited by their brief, from so much of the order as restored the matter to the active trial calendar, arguing that they have the right to conduct additional discovery with respect to damages.

Here, where there has been a substantial change of circumstances, i.e., the death of Dianne Richards, it was an improvident exercise of the Civil Court's discretion to restore the action to the active trial calendar without affording defendants the opportunity to conduct additional discovery with respect to her subsequent, unrelated medical condition and loss of enjoyment of life (see Gernhardt v. New York City Tr. Auth., 221 AD2d 502 [1995]; Buerger v. County of Erie, 101 AD2d 1025 [1984]). Plaintiff shall be permitted to move again to restore the action upon the completion of discovery. In the event defendants have not served demands for additional discovery within 30 days of this decision and order, plaintiff may move again to restore the action, which motion shall be granted unless defendants show good cause why they have not served such demands.

Accordingly, the order, insofar as appealed from, is reversed and the branch of plaintiff's motion seeking to restore the action to the calendar is denied without prejudice to renewal.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.