Bailey v. Gabrielli Truck Leasing LLC

2023 NY Slip Op 01473

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2023
• Docket: Index No. 154850/19 Appeal No. 17561 Case No. 2022-04303
• Status: Published

Opinion

Bailey v Gabrielli Truck Leasing LLC (2023 NY Slip Op 01473)

Bailey v Gabrielli Truck Leasing LLC

2023 NY Slip Op 01473

Decided on March 21, 2023

Appellate Division, First Department

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 21, 2023
Before: Manzanet-Daniels, J.P., Singh, Kennedy, Shulman, JJ.

Index No. 154850/19 Appeal No. 17561 Case No. 2022-04303

[*1]Sharon Bailey, Plaintiff-Respondent,

v

Gabrielli Truck Leasing LLC, et al., Defendants-Appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants.

Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondent.

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered on or about August 25, 2022, which denied defendants' motion to renew (1) plaintiff's motion for summary judgment on liability as against defendant Denroy Keith Duncan and to dismiss the affirmative defenses of comparative negligence and failure to use a seatbelt, and (2) defendants Gabrielli Truck Leasing LLC and Gabrielli Holding Co. Inc.'s (collectively Gabrielli defendants) motion to dismiss the complaint as against them, unanimously affirmed, without costs.

The Gabrielli defendants neither offered a reasonable justification for their failure to use due diligence to locate Duncan prior to the original motion, nor presented new evidence detailing defense counsel's efforts to secure his appearance for a deposition (see Bronson v Jacobs, 204 AD3d 531, 531 [1st Dept 2022]). Defendants' arguments as to Duncan's unavailability for deposition and the affidavit of Gabrielli Truck Leasing's manager as to the Gabrielli defendants' ownership of the trailer are barred by the law of the case doctrine, as they were previously considered and rejected by this Court (see Bailey v Gabrielli Truck Leasing LLC, 210 AD3d 573 [1st Dept 2022]).

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: March 21, 2023