McNerney v Fundalinski

2008 NY Slip Op 01220 [48 AD3d 1256]

February 8, 2008

Appellate Division, Fourth Department

As corrected through Wednesday, April 16, 2008

Dennis McNerney, Appellant, v Sandra Fundalinski et al.,Respondents.

—[*1]Hogan Willig, PLLC, Amherst (Amanda A. Gresens of counsel), for plaintiff-appellant.Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendants-respondents.Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredJanuary 30, 2007 in a personal injury action. The order granted the motion of defendants forleave to renew their summary judgment motion and, upon renewal, dismissed the complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motions are denied and the complaint is reinstated.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained ina motor vehicle accident. Defendants moved for summary judgment dismissing the complaint onthe ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), and plaintiff cross-moved for partial summary judgment on, inter alia, the issueof serious injury. Supreme Court denied the motion and cross motion and, several months later,defendants moved for leave to renew their motion for summary judgment. We conclude that thecourt erred in granting the motion for leave to renew and, upon granting renewal, grantingdefendants' motion for summary judgment dismissing the complaint. "A motion for leave torenew . . . shall be based upon new facts not offered on the prior motion that wouldchange the prior determination or shall demonstrate that there has been a change in the law thatwould change the prior determination" (CPLR 2221 [e] [2]). Defendants failed to submit anynew facts in support of their motion, nor did they demonstrate that there was a change in the law(see Scott v University ofRochester, 1 AD3d 945 [2003]; see also Matter of Solow Bldg. Co., LLC v Morgan Guar. Trust Co. ofN.Y., 30 AD3d 273, 274 [2006], lv dismissed 7 NY3d 864 [2006]; cf. NYCTL 1999-1 Trust v 114 Tenth Ave.Assoc., Inc., 44 AD3d 576, 577 [2007]). Present—Hurlbutt, J.P., Smith, Centra,Lunn and Fahey, JJ.