Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order, insofar as appealed from, denied the branches of plaintiff's motion seeking summary judgment or, in the alternative, to dismiss defendant's defense of lack of coverage.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order dated May 24, 2004, the Civil Court denied the motion and cross motion on the ground that there was an issue of fact as to whether plaintiff's assignor was entitled to coverage from defendant Motor Vehicle Accident Indemnification Corp. (MVAIC). In December 2004, plaintiff served a notice to admit upon defendant with respect to facts which had occurred prior to the commencement of the action. In October 2007, based upon the "new facts" allegedly obtained from the notice to admit, plaintiff moved for leave to renew its prior summary judgment motion and, upon renewal, for summary judgment or, in the alternative, to dismiss defendant's defense of lack of coverage. In an order entered October 8, 2008, the Civil Court stated that, because there were issues of fact regarding coverage, plaintiff's motion "to reargue and dismiss the defense of lack of coverage" was denied. Plaintiff appeals from so much of the order entered October 8, 2008 as denied the branches of plaintiff's motion seeking summary judgment or, in the alternative, to dismiss defendant's defense of lack of coverage.

"Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727, 728 [2009]; see Matter of Gold v Gold, 53 AD3d 485, 487 [2008]). Leave to renew, however, is not freely given to a party who has not exercised due diligence in making the initial factual presentation (see Matter of Allstate [*2]Ins. Co. v Liberty Mut. Ins., 58 AD3d at 728; Elder v Elder, 21 AD3d 1055, 1055 [2005]). Here, plaintiff made no attempt to offer any justification for its failure to submit the additional facts upon its original motion for summary judgment. As a result, the Civil Court properly recognized that while plaintiff's motion was denominated as one seeking leave to renew, it actually sought leave to reargue.

Having implicitly granted plaintiff leave to reargue, the Civil Court adhered to its prior determination that plaintiff was not entitled to summary judgment because there is an issue of fact as to coverage. While a motion for leave to reargue "shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]), even if the "new facts" proffered by plaintiff were to be considered, a different result would not be warranted because plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). In light of the existence of a triable issue of fact as to coverage, the branch of plaintiff's motion seeking to dismiss the defense of lack of coverage was also properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013