Risley v City of New York (2004 NY Slip Op 50364(U))

[*1]

Risley v City of New York

2004 NY Slip Op 50364(U)

Decided on April 28, 2004

Appellate Term, First Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2004

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570698/03

HAROLD RISLEY AND MARCIA RISLEY, Plaintiffs-Appellants,

against

CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, CARLOS VILLMAN, FLEX-O-TEX DRAPERY CLEANERS AND JOSE CHAPARRO, Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court, New York County dated May 2, 2003 (Debra Rose Samuels, J.) denying their motion to renew a prior order granting defendants' respective motions for summary judgment dismissing the complaint for lack of a serious injury pursuant to Insurance Law § 5102(d).

PER CURIAM:

Order entered May 2, 2003 (Debra Rose Samuels, J.) affirmed, with $10 costs.

Plaintiffs' renewal motion was properly denied. Even assuming that the report of the October 2001 medical examination was unavailable at the time the original motion was submitted, plaintiffs did not show due diligence in obtaining the allegedly new evidence. The motion to renew was not made until eleven months after the action was dismissed (see, Booth v 3669 Delaware, Inc., 275 AD2d 974; Cannistra v Gibbons, 224 AD2d 570). We additionally note that the new medical affidavit sets forth a shoulder injury previously described as "resolved" in the original affidavit. [*2]

This constitutes the decision and order of the court.