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Nelcie Souffrant, An Infant, By Marie Souffrant, Her Mother and Natural Guardian v. Shamsher Ali and Muti Ur Rahman

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


April 22, 2011

NELCIE SOUFFRANT, AN INFANT, BY MARIE SOUFFRANT, HER MOTHER AND NATURAL GUARDIAN,
AND MARIE SOUFFRANT, INDIVIDUALLY,
APPELLANTS,
v.
SHAMSHER ALI AND MUTI UR RAHMAN,
RESPONDENTS.

Appeals from orders of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered January 27, 2009 and May 22, 2009, respectively. The order entered January 27, 2009, insofar as appealed from, in effect, granted the branch of defendants' motion seeking leave to reargue plaintiffs' prior motion for an open-ended continuance of the damages phase of the trial, and, upon reargument, denied the prior motion. The order entered May 22, 2009 denied plaintiffs' motion, in effect, to open their default in opposing defendants' prior motion and, thereupon, to deny defendants' prior motion.

Souffrant v. Ali

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 22, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

ORDERED that the appeal from the order entered January 27, 2009 is dismissed; and it is further,

ORDERED that the order entered May 22, 2009 is affirmed, without costs.

In this action to recover damages for personal injuries arising from an automobile accident, the jury rendered a verdict following the liability phase of the trial, finding defendants to have been 100 percent at fault. After rendition of the verdict, plaintiffs' counsel orally moved for an open-ended continuance of the damages phase of the trial as he had been unable to procure certain medical documents from the medical facility at which the infant plaintiff had been treated, since it was no longer in operation. The Civil Court disbanded the jury and granted plaintiffs' motion, over defense counsel's objections. Thereafter, defendants made a written motion which, insofar as is relevant to this appeal, in effect, sought leave to reargue plaintiffs' motion. No written opposition papers were received by the Civil Court, although plaintiffs contend that such papers were twice served and filed. In an order entered January 27, 2009, the Civil Court, noting that it had received no opposition to the motion, in effect, granted the branch of defendants' motion seeking leave to reargue and, upon reargument, denied plaintiffs' motion for an open-ended continuance of the damages phase of the trial. Plaintiffs subsequently moved for "leave to renew and reargue" but, in effect, seeking to open their default in opposing defendants' prior motion and, thereupon, to deny defendants' prior motion. By order entered May 22, 2009, the Civil Court denied plaintiffs' motion. Plaintiffs appeal from both orders.

With respect to the order entered January 27, 2009, although plaintiffs argue to the contrary, there is nothing in the record to indicate that the Civil Court ever received opposition papers to defendants' motion. In fact, the court, in its decision, specifically stated that it had received no written opposition to the motion. In this posture, the January 27, 2009 order must be considered as having been entered upon default. As no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004]), the appeal from the order entered January 27, 2009 is dismissed.

Although plaintiffs' subsequent motion was denominated as one for leave to reargue or to renew, it must be treated as one seeking to open plaintiffs' default. Even if we assume that plaintiffs offered a reasonable excuse for their default, the facts presented were not such as would change the prior determination of the court. As we find no basis to disturb the order entered May 22, 2009 denying plaintiffs' motion, the order is affirmed. The matter shall proceed to trial on the issue of damages.

Pesce, P.J., and Rios, J., concur.

Weston, J., concurs in part and dissents in part in a separate memorandum.

Weston, J., concurs in part and dissents in part and votes to dismiss the appeal from the order entered January 27, 2009 and the order entered May 22, 2009 in the following memorandum:

In this action to recover damages for personal injuries arising from an automobile accident, the jury rendered a verdict following the liability phase of the trial, finding defendants to have been 100 percent at fault. After the rendition of the verdict on July 2, 2008, plaintiffs' counsel orally moved for an open-ended continuance of the damages phase of the trial, as he had been unable to procure certain medical documents from the medical facility at which the infant plaintiff had been treated, since it was no longer in operation. The Civil Court disbanded the jury and granted plaintiffs' motion, over defense counsel's objections.

Two months later, defendants made a written motion which, insofar as is relevant to this appeal, in effect sought leave to reargue plaintiffs' motion. In an order entered January 27, 2009, the Civil Court, acknowledging that it had received no opposition to defendants' motion, granted that branch of defendants' motion seeking leave to reargue and, upon reargument, denied plaintiffs' motion for an open-ended continuance. In doing so, the court noted that six months had passed since plaintiffs' oral request for a continuance had been granted, and that plaintiffs had failed to show what efforts had been made to procure the necessary documents. Plaintiffs subsequently moved for "leave to renew and reargue" the Civil Court's decision. By order entered May 22, 2009, the Civil Court, treating plaintiffs' motion as one for leave to reargue only, denied the motion. Plaintiffs appeal from both orders.

I am in agreement with my colleagues that plaintiffs' appeal from the Civil Court's January 27, 2009 order should be dismissed for lack of aggrievement (see CPLR 5511), although I would note an additional reason for the lack of aggrievement. While the Civil Court, upon reargument, denied plaintiffs' application for an open-ended continuance of the damages phase of the trial, plaintiffs effectively received the relief sought during the pendency of this appeal. Indeed, the trial on damages has remained pending for more than two years and, as plaintiffs acknowledge on appeal, they are ready to proceed to trial. In these circumstances, plaintiffs' challenge to the January 27, 2009 order has been rendered moot and "[plaintiffs] are simply not aggrieved by the order" (Matter of Spaziani v City of Oneonta, 302 AD2d 846, 847 [2003]; see also Parochial Bus Sys. v Board of Educ. of City of NY, 60 NY2d 539, 544-545 [1983]; Capri Prods. v Levine, 201 AD2d 318 [1994] [issue of whether trial court abused its discretion in denying defendants a six-month adjournment of trial had been rendered moot by the lapse of more than six months without a trial as a result of a stay issued by the Appellate Division to abide the appeal]). Thus, there are no grounds for plaintiffs' appeal from this order.

Nor are there any grounds for plaintiffs' appeal from the Civil Court's May 22, 2009 order. Although plaintiffs denominated their motion as one to "renew and reargue," the Civil Court treated the motion as one for leave to reargue and denied it on the ground that nothing had been "overlooked or misapprehended." Since no appeal lies from an order denying reargument, the appeal from the May 22, 2009 order should also be dismissed (see Crawn v Sayah, 31 AD3d 367 [2006]). Decision Date: April 22, 2011

20110422

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