Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated June 24, 2005. The order denied defendant's motion to renew its opposition to plaintiff's prior motion for summary judgment.

Order affirmed without costs.

On a prior appeal in this action brought by plaintiff provider to recover assigned first-party no-fault benefits, this court reversed an order denying plaintiff's motion for summary judgment and granted plaintiff's motion, based upon defendant insurer's
failure to demonstrate that it had mailed pre-claim requests for independent medical examinations (IMEs). Although defendant had submitted with its appellate brief affidavits of its IME vendors which, the court stated, "might have been sufficient" to prove the mailing of the IME requests, the affidavits were not then considered by this court as they were dehors the record (see Ocean Diagnostic Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]).

Upon remand to the court below, defendant sought renewal of its opposition to the motion, this time including the aforementioned IME vendor affidavits, and claiming, in a [*2]detailed affirmation of counsel, law office failure as a reasonable excuse for not submitting the material at the time of the previous motion. Plaintiff opposed the renewal motion, stating that it was inappropriate for defendant to seek renewal at the trial level after an appellate court's reversal of that court's order. The court disposed of the motion and this appeal by defendant ensued.

"A motion for leave to renew is intended to bring to the court's attention new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore, not brought to the court's attention [citations omitted] . . . This requirement, however, is a flexible one and the court, in its discretion, may also grant renewal in the interest of justice, upon facts which were known to the movant at the time the original motion was made [citations omitted] . . . [A] court of original jurisdiction may entertain a motion to renew or vacate a prior order or judgment even after an appellate court has rendered a decision on that order or judgment [citations omitted] . . . as long as the moving party exercised due diligence in attempting to produce the newly discovered evidence" (Tishman Constr. Corp. of New York v City of New York, 280 AD2d 374, 376-377 [2001]).

We initially note that defendant presented all the operative facts in its opposition to the prior motion, but failed to support its allegation of mailing of its IME requests by competent evidence. The IME vendor affidavits constitute neither "newly discovered evidence" nor new or additional facts.

In any event, defendant failed to show that it exercised due diligence both in obtaining the IME vendor affidavits and in presenting said evidence to the motion court by way of a motion to renew once the affidavits were procured. Instead, it chose to await this appellate court's ultimate determination of the appeal, which based its decision upon the infirmities in defendant's evidentiary presentation. Particularly on a postappeal motion, a movant bears a heavy burden of showing that it was unable at any time prior to the perfection of the appeal to bring the newly proffered evidence to the attention of the motion court (see Levitt v County of Suffolk, 166 AD2d 421 [1990]; Matter of Beiny, 132 AD2d 190 [1987]).

Accordingly, we are of the opinion that the court below properly exercised its discretion in denying defendant insurer's motion to renew its opposition to plaintiff provider's previous summary judgment motion. "Renewal is granted sparingly, and only in cases where there exists a valid excuse for failing to submit the additional facts on the original application . . . it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Beiny, 132 AD2d at 210; see also O'Dell v Caswell, 12 AD3d 492 [2004]).

Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: July 3, 2006