

Retamozzo v Friedland (2015 NY Slip Op 03237)





Retamozzo v Friedland


2015 NY Slip Op 03237


Decided on April 16, 2015


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 on April 16, 2015

Mazzarelli, J.P., Friedman, Manzanet-Daniels, Clark, Kapnick, JJ.


14813 113920/09

[*1] Armand Retamozzo, Plaintiff-Appellant,
vDiana Friedland, et al., Defendants-Respondents.


Louis Rosado and Associates, Buffalo (Louis Rosado of counsel), for appellant.
Nixon Peabody LLP, Jericho (Alexander E. Gallin of counsel), for Jason Quinones and Manuel Chaparro, respondents.
Eric T. Schneiderman, Attorney General, New York (Bethany A. Davis Noll of counsel), for Diana Friedland, Michelle Miranda, Francis Sheehan, Brian Murphy and Michele Doney, respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered June 3, 2013, which denied plaintiff's motion to vacate an order and ensuing judgment dismissing plaintiff's 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 plaintiff's willful noncompliance with discovery orders (see  22 NYCRR 202.44[a]). Plaintiff's 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 plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 16, 2015
CLERK


