Guerrero v Marable (2011 NY Slip Op 50333(U))

Guerrero v Marable

2011 NY Slip Op 50333(U) [30 Misc 3d 144]

Decided on March 2, 2011

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

Raquel Guerrero and Rebecca Guerrero, an Infant under the Age of Fourteen by Her Mother Rosana Guerrero, Appellants,

against

Mary Marable, Maximilian Nicoleau, Nakia T. Griffin and Sonny Brower, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 9, 2009. The order denied plaintiffs' motion for leave to renew prior motions by defendant Nakia T. Griffin, defendant Sonny Brower, and defendants Mary Marable and Maximilian Nicoleau for summary judgment dismissing the complaint.

Plaintiffs commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident. Defendant Nakia T. Griffin moved for summary
judgment dismissing the complaint on the ground that plaintiffs failed to meet the serious injury threshold requirement of Insurance Law § 5102 (d), and defendant Sonny Brower, and defendants Mary Marable and Maximilian Nicoleau, also moved for summary judgment seeking the same relief. In opposition to the motions, plaintiffs submitted an affirmation from a physician who, based upon his review of medical records, described the physical examinations of plaintiffs which had been performed by another doctor shortly after the accident. The Civil Court granted defendants' motions, finding that defendants had made a prima facie showing of their entitlement to judgment as a matter of law and that plaintiffs had failed to come forward with admissible medical evidence revealing the existence of significant limitations that were contemporaneous with the subject accident. Plaintiffs subsequently moved, pursuant to CPLR 2221 (e), for leave to renew the prior motions, proffering affirmations by their doctor who had performed the medical examinations shortly after the subject accident. By order entered June 9, 2009, the Civil Court denied plaintiffs' motion, and we affirm.

A motion for leave to renew "shall be based upon new facts not offered on the prior [*2]motion that would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Ramirez v Khan, 60 AD3d 748 [2009]; Lardo v Rivlab Transp. Corp., 46 AD3d 759 [2007]). The requirement that a motion for leave to renew be based upon new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion. However, a motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472 [2005]; see Huma v Patel, 68 AD3d 821 [2009]; Sobin v Tylutki, 59 AD3d 701 [2009]).

In the present case, plaintiffs' excuse for their inability to include affirmations of their initial treating physician on the original motion was not supported by an affidavit by one with personal knowledge of the facts (see Caraballo v Kim, 63 AD3d 976 [2009]; Dinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). Under these circumstances, the Civil Court did not improvidently exercise its discretion in denying the motion to renew, and the order is affirmed. In view of the foregoing, we reach no other issue.