| Madison v Tahir |
| 2007 NY Slip Op 09212 [45 AD3d 744] |
| November 20, 2007 |
| Appellate Division, Second Department |
| Michelle M. Madison, Appellant, v Shannon Tahir et al.,Respondents. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Batrone of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Baisley, J.), dated June 28, 2006, which denied her motionfor leave to renew her opposition to the defendants' prior motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d), which had been granted in an order datedDecember 16, 2005.
Ordered that the order is affirmed, with costs.
In an order dated December 16, 2005, the Supreme Court granted the defendants' motion forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d). The plaintiff appealedfrom that order. That appeal, however, was dismissed for failure to prosecute by decision andorder on motion of this Court dated September 11, 2006.
The plaintiff also moved for leave to renew her opposition to the defendants' motion. TheSupreme Court denied her motion, and we affirm.
In support of her motion for leave to renew, the plaintiff needed to proffer both new [*2]facts not presented on the prior motion that would warrant denial ofthe defendants' motion for summary judgment dismissing the complaint, and a reasonablejustification for the failure to have presented such facts on the prior motion (see CPLR2221 [e] [2], [3]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]). In addition, review inthis Court is further limited by the dismissal of the plaintiff's appeal from the order datedDecember 16, 2005.
As a general rule, we do not consider an issue on a subsequent appeal which was raised orcould have been raised in an earlier appeal which was dismissed for lack of prosecution, althoughwe have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; St. Claire v Gaskin, 295AD2d 336, 337 [2002]).
The plaintiff has not demonstrated any basis for the exercise of such discretion. Given thislimited review, we need not consider the issue raised on the instant appeal, as that issue couldhave been raised on the appeal from the order dated December 16, 2005 (see Gihon, LLC v 501 Second St.,LLC, 29 AD3d 630 [2006]; Hepner v New York City Tr. Auth., 27 AD3d 418, 419 [2006]). Inany event, the plaintiff failed to demonstrate a reasonable justification for her failure to haveproffered, in opposition to the defendant's motion for summary judgment dismissing thecomplaint, the alleged new facts presented on her motion for leave to renew. Miller, J.P., Ritter,Goldstein and Dickerson, JJ., concur.