| Lardo v Rivlab Transp. Corp. |
| 2007 NY Slip Op 10109 [46 AD3d 759] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Michael Lardo, Appellant, v Rivlab Transportation Corp. etal., Respondents. |
—[*1] Mintzer, Sarowitz, Zeris, Ledva & Meyers, Hicksville, N.Y. (Marc D. Sloane of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Queens County (Cullen, J.), datedJuly 6, 2007, which granted that branch of the defendants' motion which was for leave to renewtheir opposition to his prior motion for summary judgment on the issue of liability, which hadbeen granted in an order dated February 28, 2007, and upon renewal, inter alia, vacated the orderdated February 28, 2007, and directed that the note of issue and certificate of readiness bestricken and the action marked off the trial calendar.
Ordered that the order dated July 6, 2007 is reversed insofar as appealed from, on the factsand in the exercise of discretion, with costs, that branch of the defendants' motion which was forleave to renew is denied, and the order dated February 28, 2007 is reinstated.
"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454,454-455 [2005]). A motion for leave to renew must be based upon "new facts not offered on theprior motion that would change the prior determination" (CPLR 2221 [e] [2]) and must contain"reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e][3]; see Matter of Leyberman vLeyberman, 43 AD3d 925 [2007]; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2007]; O'Connell v Post, 27 AD3d 631[2006]; Renna v Gullo, 19 AD3d472, 473 [2005]; O'Dell vCaswell, 12 AD3d 492 [2004]). A motion for leave to renew "is not a second chancefreely given to parties who have not exercised due diligence in making their first factualpresentation" (Matter of Weinberg, 132 AD2d 190, 210 [1987]; see Worrell vParkway Estates, LLC, 43 AD3d at 437; Renna v Gullo, 19 AD3d at 473; O'Dell v Caswell, 12 AD3d 492[2004]).
Here, the Supreme Court improvidently exercised its discretion in granting that branch of thedefendants' motion which was for leave to renew. While the defendants' submission of anaffidavit from the defendant Lloyd G. Forbes presented new evidence setting forth Forbes'version of the events surrounding the occurrence of the accident, their purported justification forfailing to submit those facts in opposition to the prior motion was not reasonable (see Beyl v Franchini, 37 AD3d505, 506 [2007]; Perez v MullerMach. Co., Inc., 19 AD3d 468, 468-469 [2005]; Falkowitz v Peters, 294 AD2d330, 331 [2002]).
The remaining contentions either are without merit or have been rendered academic by ourdetermination. Rivera, J.P., Spolzino, Carni and McCarthy, JJ., concur.