Recitation as required by CPLR 2219(a) of the papers considered in the review of this Motion:

The plaintiff, Utica National Insurance Company of Texas ("Plaintiff"), moves this Court pursuant to Civil Practice Law and Rules ("CPLR") 2221 (e) for leave to renew their prior motion for summary judgment. The defendant, Consolidated Edison Company of New York, Inc. ("Defendant"), opposes. Upon review of the motion papers and after oral arguments, for the reasons set forth below, Plaintiff's motion for leave to renew is GRANTED; however, their underlying motion for summary judgment is DENIED.

Plaintiff J.M. (now represented by L.M., as the Administrator of her estate) commenced TS-300776-17 by filing a Summons and Complaint on or about October 21, 2014, in Supreme Court, Queens County, for serious injuries sustained in a motor vehicle accident ("Action No. 1"). Defendant joined issue by serving an answer, and that case was later transferred to Civil Court, Queens County, on or about December 1, 2017.

Plaintiff, as subrogee of J.M. (the "Subroger"), commenced TS-300138-19 by filing a Summons and Complaint in Supreme Court, Queens County, on or about September 6, 2017, to recover first-party, No-Fault benefits paid to J.M. following her motor vehicle accident ("Action No. 2"). Defendant joined issue by serving an Answer. In November 2017, Defendant filed a motion to dismiss, which was denied. The case was transferred to Civil Court, Queens County, by order of the Honorable C.R.V., signed on January 14, 2019, and entered on January 30, 2019, in order to join TS-300776-17 for trial.

On September 3, 2019, Plaintiff filed a Notice of Trial in both actions.

In January 2020, Plaintiff filed the instant motion for summary judgment. Defendant filed a response in opposition on or about February 20, 2020. Plaintiff served a reply on or about March 9, 2020. The motion, previously submitted to the Honorable W.L., was reassigned to this Court on July 6, 2020. On July 10, 2020, this Court issued a decision denying Plaintiff's motion for summary judgment as untimely, as the affidavit of service listed a timely date, but the notice of motion was signed with an untimely date.

On or about November 13, 2020, Plaintiff filed the instant motion for leave to renew. Defendant filed a response in opposition, and Plaintiff filed a reply.

Due to the COVID-19 public health crisis and pursuant to the Administrative Order of the Honorable Anthony Cannataro, Administrative Judge of the Civil Court of the City of New York, the parties consented to appear for oral arguments virtually via Microsoft Teams on May 12, 2021.

I. Motion for leave to renew

CPLR 2221 (e) provides that,

A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.

In the instant case, Plaintiff submits proof of mailing indicating that the original notice of motion for summary judgment was, in fact, mailed on January 2, 2020, the last possible day for timely making the motion (Plaintiff Ex. 11 and 12). Therefore, Plaintiff has established that the January 3, 2020, date on the notice of motion was the typographical error. As Plaintiff notes, the Court may excuse this error pursuant to CPLR 2001, which permits the Court to disregard a nonprejudicial mistake. Plaintiff also explains this evidence of timely service was not provided with the original motion because they were unaware of the error until it was noted in the Court's July 10, 2020, decision.

While Defendant argues that Plaintiff's motion for leave to renew is untimely, as it was not filed within thirty (30) days of the July 10, 2020 Decision, the Court notes that there is no such requirement for a motion for a leave to renew as there is for a motion for leave to reargue (CLR 2221 [d][3]). Additionally, due to the COVID-19 public health crisis, Governor Andrew Cuomo's Executive Order No. 8.202.72, (extending the toll ordered in Executive Order [A. Cuomo] No. 8.202.8 and extended by subsequent Executive Orders) tolled the statutory deadlines for filing or service of "any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state" through November 3, 2020. The instant motion was served on November 11, 2020. Therefore, even if there were a thirty (30) day requirement, it would be met in this instance.

Defendant also contends that Plaintiff can no longer bring a motion for summary judgment, as Plaintiff did not file such a motion after Defendant's motion to dismiss was denied on June 6, 2018. However, Defendant cites to no statute nor caselaw to support their contention that was Plaintiff's only opportunity to file a motion for summary judgment.

Accordingly, Plaintiff has demonstrated that their underlying motion for summary judgment was timely made, and therefore their motion for leave to renew is GRANTED.

CPLR 3212 (b) provides that a Court may grant a motion for summary judgment, "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."

In deciding a motion for summary judgment, the burden rests first with the movant to make a prima facie showing that no material questions of fact exist in the case, and the party is therefore entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Only once the movant makes such a showing does the burden shift to the opposing party to make a sufficient showing that a question of material fact does actually exist in the case (id.).

Plaintiff's Subroger passed away from other causes in 2015, between the time of the motor vehicle accident and the time depositions were taken in the instant action. Therefore, to establish liability, Plaintiff relies on the deposition of the Subroger's son and administrator of her estate, L.M., arguing that his testimony be admitted as a present sense impression and excited utterance.

In his deposition, L.M. testified that his mother was in a motor vehicle accident in September 2013, alleging that a loose manhole cover owned by Defendant flipped up under her car. L.M. learned about the accident through his wife, who answered the phone when his mother called to inform them of the accident (Ex. 6, L.M. tr. at 12, lines 8-24). Immediately after learning of the accident, L.M. went to the scene of the accident and to his mother's home (id. at 13-15) . He testified that he could not hear his mother's side of the phone call with his wife (id. at 13, lines 3-6). L.M. further testified that he could not remember how long it took from the time he started driving to his mother's home until he arrived there, stating that it could have been anywhere from twenty to forty minutes, depending on traffic (id. at 14, lines 6-13).

"As generally stated, the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" (People v Brown, 80 NY2d 729, 732 [1993]). Comparatively, a statement may be admissible as an excited utterance when it was made under stress or excitement caused by an external event, "and not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d 302, 306 [2003]). The Court of Appeals found that an excited-utterance evaluation was bound by more factors than just a measure of time, but a determination as to whether there was time, opportunity, and presence of mind to reflect, deliberate, and possibly misrepresent (id.).

In the instant case, Defendant argues, L.M. did not speak to his mother immediately after the accident and did not observe the accident. Therefore, he cannot personally testify as to either the accident or what his mother said on the phone, and Plaintiff cannot rely on L.M.'s wife's conversation with the Subroger.

The Court agrees with Defendant. L.M. has no personal knowledge of the accident or his mother's phone conversation immediately thereafter. While L.M.'s wife spoke to the Subroger on the phone after the accident, Plaintiff has not submitted any testimony on the part of the wife as to what may have been said.

Additionally, L.M. did not provide any information about his mother's mental state when he saw her at her house, after a twenty-to-forty minute drive, and possibly after stopping at the scene of the accident first. (L.M. could not recall whether he had spoken to his mother before or after visiting the scene of the accident [L.M. tr. at 16, lines 17-20].) The Court has no information regarding the amount of time following the accident or the Subroger's mental state in which to make a determination as to whether anything she said to her son at her house may have been an excited utterance or whether it was the product of deliberation or reflection. Therefore, Plaintiff has not established that the Subroger's description of the accident as provided by L.M. in his deposition meets either the present sense impression or excited utterance exception to hearsay, and the statements are therefore inadmissible.

B. Police accident report

Plaintiff also submits the police accident report from the scene, where the Subroger told [*3]officers that the manhole cover had flipped up under her car (Ex. 8, Ex C). However, as Defendant notes, the accident report is not certified; it is, therefore, not admissible as a Business Record and is hearsay (see CPLR 4518; Hazzard v Burrowes, 95 AD3d 829, 831 [2d Dept 2012]).

In addition to L.M.'s deposition, Plaintiff relies on the deposition of Defendant's employee, B.R., who was dispatched to the scene of the accident. Plaintiff points to B.R.'s statements that she was dispatched based on an FDNY report that stated a loose manhole cover had flipped under a car and that when she arrived at the scene, she found the manhole cover off and a damaged ring around where the manhole cover should be.

Defendant argues that B.R. did not observe and did not testify to the actual accident which allegedly took place. B.R. testified only to the damage to a ring and a manhole cover, which she presumed to be the one at the site of the alleged accident, but never actually confirmed is from that location.

Defendant is correct that B.R. cannot testify to the accident itself and that, even when testifying to damage to a ring around a manhole cover, did not confirm that this was at the site of the alleged accident. When presented with pictures allegedly of the scene of the accident, B.R. said simply, "This is a photograph of what we are going to say is Kissena Boulevard" and stated that did not in fact know that it was Kissena Boulevard in the photograph (Ex. 6, B.R. tr. at 24, lines 3-11). The question posed to B.R. at the deposition, regarding a photograph of a manhole cover, began, "Assuming this is the manhole cover on Kissena Boulevard near Jewel Avenue" (id. at 31, lines 24-25). B.R.'s testimony, therefore, does not establish whether there was, in fact, any damage to the manhole cover on Kissena Boulevard.

B.R. did not testify to the accident, the cause of the accident, or even, conclusively, whether any manhole cover at the site of the accident was damaged.

Plaintiff further submits the NF-2 no fault claim form, signed by the Subroger under penalty of perjury, as both evidence of liability and damages (Ex. 6, Ex. 8). Plaintiff argues that a document signed under penalty of perjury is the equivalent of an affidavit (Antaki v Mateo, 100 AD3d 579 [2d Dept 2012]). Conversely, Defendant contends that the signed NF-2 is the Subroger's own self-serving document and that they had no opportunity to cross-examine the Subroger on her statements therein; therefore, the form is inadmissible to establish liability.

The Court finds that the Second Department's view of a document signed under penalty of perjury applies and therefore, the NF-2, signed under penalty of perjury, is akin to an affidavit and therefore admissible. However, the barebones description of the accident contained in the NF-2 — "changing lane — hit loose manhole cover — it flipped up under car" — is not sufficient to establish liability as it does not provide any information on the state of the manhole cover before the accident, the Subroger's basis of personal knowledge that the cover flipped off because it was loose, or that Defendant had any notice about any damaged condition of the manhole cover.

In sum, Plaintiff has not established the circumstances of the accident, nor the state of the manhole cover at the site of the accident. Accordingly, Plaintiff's motion for summary judgment as to liability is DENIED.

Plaintiff contends that, even if the Court does not find summary judgment on the issue of liability, the Court should find summary judgment on the issue of damages. To that end, Plaintiff submits proof that they paid Subroger for her medical bills and lost time for work, the Subroger's NF-2 stating that her injury resulting from the accident was a fractured right wrist, and the deposition of L.M., wherein he stated that his mother suffered from injuries to and received treatment for her wrist, left knee, chest, and back.

Additionally, Plaintiff argues, their burden of proof lies solely in establishing that they paid no-fault benefits to the Subroger. As a No-Fault matter, they claim, they do not need to prove causation or medically necessity.

In response, Defendant argues that there are many questions of fact as to the extent of any damages arising from the alleged accident. In her NF-2, the Subroger mentioned only an injury to her right wrist. Conversely, L.M. testified in his deposition that, after the accident, his mother always complained about her left knee (L.M. tr. at 42, lines 20-25; at 43, lines 2-16). In the Bill of Particulars for Action No. 1 in the instant matter, injuries were listed in the lumbar spine, right wrist, and left knee. In Action No. 2, the Bill of Particulars described injuries to the cervical spine, lumbar spine, and left knee.

Furthermore, according to the medical records submitted in discovery under Action No. 1, the Subroger suffered from an "old ulnar styloid fracture" in her right wrist. The Subroger also did not receive any treatment on her knee or lumbar spine until eight months after the accident, leaving questions as to causation.

Defendant also argues that there are questions as to the lost wages Plaintiff paid to the Subroger. Wages were paid for lost work from June 2014 through March 2015; however, the Subroger began to undergo cancer treatment in September 2014, and there is no evidence that the lost work following that time was not due to that treatment. Additionally, the Subroger's provider cleared her for return to work as early as September 24, 2013, and Plaintiff has submitted no evidence as to why the Subroger did not return to work as of that date.

The Court finds that Defendant has raised multiple, material questions of fact as to damages in the instant case, and accordingly, Plaintiff's motion for summary judgment as to damages is DENIED.

Plaintiff has demonstrated that the underlying motion for summary judgment was timely made, and therefore, their motion for leave to renew is GRANTED.

However, Plaintiff has not provided sufficient, admissible evidence as to liability, and Defendant has demonstrated multiple, material questions of fact as to damages. Accordingly, Plaintiff's underlying motion for summary judgment is DENIED.

This is the Decision and Order of the Court.