| Hlenski v City of New York |
| 2008 NY Slip Op 04835 [51 AD3d 974] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Lillian Hlenski, Respondent, v City of New York,Defendant, and Sava Nicolaou et al., Appellants. |
—[*1] Stacy Veloudios, Beechhurst, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants Sava Nicolaou andDespina Nicolaou, also known as Daisy Nicolaou, appeal from an order of the Supreme Court,Queens County (Flug, J.), entered December 29, 2006, which granted the plaintiff's motion, ineffect, for leave to renew her opposition to that branch of their prior motion which was forsummary judgment dismissing the complaint insofar as asserted against them, which had beengranted in an order of the same court dated August 25, 2006, and upon renewal, in effect, vacatedboth the order dated August 25, 2006, and a judgment of the same court entered October 26,2006, which was in their favor and against the plaintiff dismissing the complaint insofar asasserted against them, and thereupon denied that branch of their motion which was for summaryjudgment.
Ordered that the order entered December 29, 2006 is reversed, on the facts and in theexercise of discretion, with costs, the plaintiff's motion is denied, and the order dated August 25,2006 and the judgment entered October 26, 2006 are reinstated.
"A motion for leave to renew must (1) be based upon new facts not offered on a prior motionthat would change the prior determination, and (2) set forth a reasonable justification for thefailure to present such facts on the prior motion" (Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR2221 [e]; Keyland Mech. Corp. v 529Empire Realty Corp., 48 AD3d 755 [2008]).
Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff'smotion, in effect, for leave to renew. The plaintiff's new facts, offered in support of renewal,were based on a report of an expert's inspection of the sidewalk where the plaintiff fell, and of theretaining wall on the defendants' property which abutted the sidewalk. This inspection was made[*2]from the public sidewalk more than five years after theaccident. The expert opined that the sidewalk defect which caused the plaintiff's fall was theresult of the manner in which the retaining wall on the defendant's property was built andmaintained. The plaintiff failed to provide any explanation as to why this inspection was notperformed earlier, and why the expert's opinion could not have been presented in opposition tothe original motion (see Clemente v CarlBongiorno & Sons, Inc., 39 AD3d 688 [2007]; Crystal House Manor, Inc. v Totura, 29 AD3d 933 [2006]; Elder v Elder, 21 AD3d 1055[2005]; Hart v City of New York, 5AD3d 438 [2004]). In addition, this theory of liability differed markedly from that profferedby the plaintiff in her bill of particulars, and was improperly asserted for the first time in supportof renewal.
Furthermore, the expert opinion failed to raise an issue of fact in opposition to thedefendants' prima facie showing of entitlement to judgment as a matter of law. The expert reliedupon unauthenticated photographs, and his conclusions that the retaining wall and sidewalk werein the same condition when he inspected them as they were on the day of the accident, and thatthe construction and maintenance of the retaining wall caused the sidewalk defect, werespeculative. Lifson, J.P., Covello, Angiolillo and Leventhal, JJ., concur.