| Simpson v Tommy Hilfiger U.S.A., Inc. |
| 2008 NY Slip Op 00953 [48 AD3d 389] |
| February 1, 2008 |
| Appellate Division, Second Department |
| Winthrop L. Simpson, Appellant, v Tommy HilfigerU.S.A., Inc., Also Known as Tommy Hilfiger Sportswear, Inc.,Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Eugene T.Boulé and Debra A. Adler of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Hurkin-Torres, J.), dated May 16, 2006, which denied thosebranches of his motion which were for leave to renew and reargue his prior motion to vacate anorder of the same court dated July 11, 2005, granting the defendant's unopposed motion forsummary judgment dismissing the complaint, which had been denied in an order dated January18, 2006.
Ordered that the appeal from so much of the order dated May 16, 2006 as denied that branchof the plaintiff's motion which was for leave to reargue is dismissed, without costs ordisbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated May 16, 2006 is reversed insofar as reviewed, on the law and inthe exercise of discretion, without costs or disbursements, that branch of the plaintiff's motionwhich was for leave to renew his prior motion to vacate is granted, upon renewal, the order datedJanuary 18, 2006 is vacated, the plaintiff's motion to vacate the order dated July 11, 2005 isgranted, the order dated July 11, 2005 is vacated, and the defendant's motion for summaryjudgment dismissing the complaint is denied.
In April 2005 the defendant moved for summary judgment dismissing the complaint. Theplaintiff failed to oppose the motion and by order dated July 11, 2005, the Supreme Courtgranted [*2]the motion. About one month later, the plaintiffmoved to vacate the order dated July 11, 2005, claiming that his failure to oppose the defendant'smotion for summary judgment was due to law office failure, and he asserted various grounds foropposing the defendant's motion. In opposition to the plaintiff's motion to vacate the default, thedefendant contended, inter alia, that the plaintiff had failed to submit an affidavit of merit. InSeptember 2005 the Supreme Court denied the plaintiff's motion to vacate the order dated July11, 2005, with leave to renew upon proper papers, finding that the plaintiff had failed to submitan affidavit of merit. In November 2005 the plaintiff renewed his motion to vacate the orderdated July 11, 2005, but, as the defendant pointed out in its opposition to this motion, theaffidavit of merit submitted by the plaintiff was not executed before a person authorized toadminister oaths (see CPLR 2309). In reply, the plaintiff submitted a properly notarizedaffidavit. By order dated January 18, 2006, however, the Supreme Court denied the plaintiff'srenewed motion to vacate, refusing to consider the corrected affidavit because it was onlysubmitted in reply. In February 2006 the plaintiff moved again for leave to renew and to rearguehis motion to vacate the order dated July 11, 2005, this time referring to the affidavit of merit inadmissible form, thus correcting his earlier, inadvertent procedural error.
CPLR 2221 (e) authorizes a motion for leave to renew based on "new facts not offered on theprior motion that would change the prior determination [provided there is] reasonablejustification for the failure to present such facts on the prior motion." Here, it is true that the factscontained within the unnotarized affidavit were offered on the plaintiff's first renewal motion, butthat affidavit was correctly rejected as not being in admissible form. It is also true that the samefacts were contained in an admissible affidavit on the plaintiff's first renewal motion, but thataffidavit was correctly rejected as improperly presented for the first time in reply papers (see Juseinoski v Board of Educ. of City ofN.Y., 15 AD3d 353, 355 [2005]). CPLR 2221 (e), however, has not been construed sonarrowly as to disqualify, as "new facts not offered" on the earlier motion, facts contained in adocument originally rejected for consideration because they were not in admissible form(compare Lauer v Rapp, 190 AD2d 778, 779 [1993], and Miller v Duffy, 162AD2d 438, 439 [1990], with Pichardo v Blum, 267 AD2d 441, 442 [1999], andDoumanis v Conzo, 265 AD2d 296, 297 [1999]; see Riggs v Pursell, 74 NY 370,379 [1878]; DeLeonardis v Brown,15 AD3d 525, 526 [2005]; S & D Petroleum Co. v Tamsett, 144 AD2d 849,849-850 [1988]; cf. Ortiz v Tusa, 300 AD2d 288 [2002]). Contrary to the SupremeCourt's determination, while the affidavit may not represent newly-discovered evidence (seeOrtiz v Tusa, 300 AD2d at 288; Pichardo v Blum, 267 AD2d at 441; Doumanis vConzo, 265 AD2d at 296), this circumstance does not disqualify the motion as one for leaveto renew. The key to qualifying such corrected evidence for treatment on a renewal motion is"reasonable justification" for failing to present it on the prior motion (CPLR 2221 [e] [3]; seeMiller v Duffy, 162 AD2d at 439-440; cf. Ortiz v Tusa, 300 AD2d at 288;Pichardo v Blum, 267 AD2d at 441; Doumanis v Conzo, 265 AD2d at 296).
The explanation proffered by the plaintiff's counsel concerning the plaintiff's limitations inlanguage and education and a misunderstanding of the instructions for notarization in Jamaica,West Indies, where the plaintiff resides, qualified as a reasonable justification for failing topresent the affidavit in admissible form in the moving papers of the first renewal motion (seeMiller v Duffy, 162 AD2d at 438). Consequently, the Supreme Court erred in denying thatbranch of the plaintiff's motion which was for leave to renew (see DeLeonardis v Brown,15 AD3d at 525; Wester v Sussman, 304 AD2d 656 [2003]; Lauer v Rapp,190 AD2d at 778).
Upon renewal, the Supreme Court should have granted the plaintiff's motion to vacate [*3]the prior order dated July 11, 2005, in which the defendant'sunopposed motion for summary judgment dismissing the complaint had been granted. Theplaintiff demonstrated a reasonable excuse for his default (see CPLR 5015 [a] [1]) byshowing that the default resulted from the law office failure of his attorney to calendar the returndate of the summary judgment motion and to serve and file opposition papers. The defendant didnot show that these failures of the plaintiff's counsel were either intentional or part of a pattern ofwillful default or neglect (seeMontefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d 673 [2007]; Rockland Tr. Mix, Inc. v Rockland Enters.,Inc., 28 AD3d 630 [2006]; Hageman v Home Depot U.S.A., Inc., 25 AD3d 760, 761 [2006];Gironda v Katzen, 19 AD3d644, 645 [2005]; Liotti v Peace,15 AD3d 452, 453 [2005]). Moreover, in addition to establishing the existence of ameritorious cause of action in his affidavit of merit, which the Supreme Court rejected, theplaintiff demonstrated that the defendant's motion was untimely, thus establishing the existenceof a meritorious opposition to the defendant's motion (see St. Rose v McMorrow, 43 AD3d 1146 [2007]; Rockland Tr. Mix, Inc. v Rockland Enters.,Inc., 28 AD3d 630 [2006]; Henry v Kuveke, 9 AD3d 476, 479 [2004]; Parker v City ofNew York, 272 AD2d 310, 310-311 [2000]). Since the record establishes that the defendant'smotion for summary judgment was, in fact, untimely (see Uniform Civil Term Rules ofthe Supreme Court, Kings County, rule 13; Brill v City of New York, 2 NY3d 648 [2004]; Pierre v Feldman, 41 AD3d 454[2007]; Giordano v CSC Holdings, Inc.,29 AD3d 948, 948-949 [2006]; Dettmann v Page, 18 AD3d 422 [2005]; cf. Ramos v Triboro Coach Corp., 31AD3d 625 [2006]), it should have been denied. Crane, J.P., Florio, Lifson and Carni, JJ.,concur.