Garcia v. La Fortuna Restaurant, Inc.

Appellate Division of the Supreme Court of New York

Garcia v. La Fortuna Restaurant, Inc.

118 A.D.3d 482, 987 N.Y.S.2d 136

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 10, 2014

StatusPublished

This text of 118 A.D.3d 482 (Garcia v. La Fortuna Restaurant, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garcia v. La Fortuna Restaurant, Inc., 118 A.D.3d 482, 987 N.Y.S.2d 136 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered April 8, 2013, which denied the motion of defendants La Fortuna Restaurant, Inc. and Raymond Portoreal for leave to renew the prior order, same court and Justice, entered December 20, 2011, granting plaintiffs motion to strike their answer, unanimously affirmed, without costs.

On a prior appeal, we affirmed the motion court’s order striking defendants La Fortuna Restaurant and Portoreal’s answer (102 AD3d 638 [1st Dept 2013]). The motion court properly determined that the transcript of Portoreal’s partial deposition and his affidavit explaining the reason for his failure to appear for a continued deposition are not new facts that could not have been offered on the prior motion (see CPLR 2221 [e] [2], [3]). In any event, the alleged new facts, even if considered, would not have changed the prior determination (see CPLR 2221 [e] [2]; Burgess v Charles H. Greenthal Mgt. Corp., 37 AD3d 151 [1st Dept 2007]). Indeed, Portoreal only attempts to excuse his failure to appear for a continued deposition on December 12, 2011, based upon a conflict which he had not reported to his attorneys, and does not address his earlier failures to appear in defiance of three court orders.

Concur — Tom, J.E, Friedman, Renwick, Gische and Clark, JJ.

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Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered April 8, 2013, which denied the motion of defendants La Fortuna Restaurant, Inc. and Raymond Portoreal for leave to renew the prior order, same court and Justice, entered December 20, 2011, granting plaintiffs motion to strike their answer, unanimously affirmed, without costs.

On a prior appeal, we affirmed the motion court’s order striking defendants La Fortuna Restaurant and Portoreal’s answer (102 AD3d 638 [1st Dept 2013]). The motion court properly determined that the transcript of Portoreal’s partial deposition and his affidavit explaining the reason for his failure to appear for a continued deposition are not new facts that could not have been offered on the prior motion (see CPLR 2221 [e] [2], [3]). In any event, the alleged new facts, even if considered, would not have changed the prior determination (see CPLR 2221 [e] [2]; Burgess v Charles H. Greenthal Mgt. Corp., 37 AD3d 151 [1st Dept 2007]). Indeed, Portoreal only attempts to excuse his failure to appear for a continued deposition on December 12, 2011, based upon a conflict which he had not reported to his attorneys, and does not address his earlier failures to appear in defiance of three court orders.

Concur — Tom, J.E, Friedman, Renwick, Gische and Clark, JJ.

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Bluebook (online)

118 A.D.3d 482, 987 N.Y.S.2d 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garcia-v-la-fortuna-restaurant-inc-nyappdiv-2014.

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