Retamozzo v. Friedland

Appellate Division of the Supreme Court of New York

Retamozzo v. Friedland

127 A.D.3d 532, 5 N.Y.S.3d 728

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

DecidedApril 16, 2015

Docket14813 113920/09

StatusPublished

This text of 127 A.D.3d 532 (Retamozzo v. Friedland) 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

Retamozzo v. Friedland, 127 A.D.3d 532, 5 N.Y.S.3d 728 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (George J. Silver, J.), entered June 3, 2013, which denied plaintiffs motion to vacate an order and ensuing judgment dismissing plaintiffs verified amended complaint as a sanction for willfully refusing to comply with discovery orders, unanimously affirmed, without costs.

There is no basis for vacating the order and ensuing judgment. Even if CPLR 5015 (a) (1) is applicable, plaintiff failed to provide a reasonable excuse for not moving to confirm or reject a special referee’s report recommending a conditional dismissal of the amended complaint due to plaintiffs willful noncompliance with discovery orders (see Uniform Rules for Trial Cts [22 NYCRR] § 202.44 [a]). Plaintiffs contention that he did not have notice of the filing of the report is “demonstrably false,” as the record shows that the report was filed and published online on May 10, 2012, and that on May 22, 2012 defense counsel informed plaintiff of the report’s online publication (Wilf v Halpern, 234 AD2d 154, 154 [1st Dept 1996]).

We have considered plaintiffs remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Friedman, Manzanet-Daniels, Clark and Kapnick, JJ.

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Order, Supreme Court, New York County (George J. Silver, J.), entered June 3, 2013, which denied plaintiffs motion to vacate an order and ensuing judgment dismissing plaintiffs verified amended complaint as a sanction for willfully refusing to comply with discovery orders, unanimously affirmed, without costs.

There is no basis for vacating the order and ensuing judgment. Even if CPLR 5015 (a) (1) is applicable, plaintiff failed to provide a reasonable excuse for not moving to confirm or reject a special referee’s report recommending a conditional dismissal of the amended complaint due to plaintiffs willful noncompliance with discovery orders (see Uniform Rules for Trial Cts [22 NYCRR] § 202.44 [a]). Plaintiffs contention that he did not have notice of the filing of the report is “demonstrably false,” as the record shows that the report was filed and published online on May 10, 2012, and that on May 22, 2012 defense counsel informed plaintiff of the report’s online publication (Wilf v Halpern, 234 AD2d 154, 154 [1st Dept 1996]).

We have considered plaintiffs remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Friedman, Manzanet-Daniels, Clark and Kapnick, JJ.

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Bluebook (online)

127 A.D.3d 532, 5 N.Y.S.3d 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retamozzo-v-friedland-nyappdiv-2015.

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