| Sobin v Tylutki |
| 2009 NY Slip Op 01465 [59 AD3d 701] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Jessica A. Sobin, Appellant, v Rafal Tylutki et al.,Respondents, et al., Defendants. |
—[*1] Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for respondents RafalTylutki and Dariusz Lipinski.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Queens County (Dollard, J.), dated June 26, 2007, which granted themotion of the defendant Allen Luna for summary judgment dismissing the complaint insofar asasserted against him on the ground that he was not at fault in the happening of the accident, and(2), as limited by her brief, from so much of an order of the same court dated November 16,2007, as denied that branch of her motion which was for leave to renew her opposition to a priormotion of the defendants Rafal Tylutki and Dariusz Lipinski for summary judgment dismissingthe complaint insofar as asserted against them on the ground that she did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d), which had been determined in asecond order dated June 26, 2007.
Ordered that the first order dated June 26, 2007 is affirmed; and it is further,
Ordered that the order dated November 16, 2007 is affirmed insofar as appealed from; and isfurther,
Ordered that one bill of costs is awarded to the respondents Rafal Tylutki and Dariusz [*2]Lipinski.
This action arises from a chain-reaction motor vehicle accident which occurred on March 21,2005 on Eliot Avenue, near its intersection with 74th Street in Queens. A motor vehicle operatedby the defendant Rafal Tylutki and owned by the defendant Dariusz Lipinski struck the rear of avehicle operated by the defendant Allen Luna, propelling it into a vehicle operated by thedefendant Frederick Vennera, which, in turn, was propelled into a motor vehicle operated by theplaintiff. According to Luna's undisputed testimony, he had been stopped at a red light at theintersection of Eliot Avenue and 74th Street for approximately 45 seconds when the impact tohis car occurred.
The evidence which Luna submitted in support of his motion for summary judgmentdismissing the complaint insofar as asserted against him established, prima facie, that he was notliable for the impact to the plaintiff's motor vehicle (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Arias v Rosario,52 AD3d 551 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact(see CPLR 3212 [b]). Accordingly, the Supreme Court properly granted Luna's motionfor summary judgment.
With respect to that branch of the plaintiff's motion which was for leave to renew, "[i]ngeneral, a motion for leave to renew must be based upon new facts not offered on the priormotion that would change the prior determination, and must set forth a reasonable justificationfor the failure to present such facts on the prior motion" (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2007]). Amotion "to renew is not a second chance freely given to parties who have not exercised duediligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinsteinv Goldman, 225 AD2d 328, 329 [1996]). The Supreme Court lacks discretion to grantrenewal where the moving party omits a reasonable justification for failing to present the newfacts on the original motion (see Worrell v Parkway Estates, LLC, 43 AD3d at 437).Here, in support of that branch of her motion which was for leave to renew, the plaintiffsubmitted additional facts known to her at the time of the prior motion without demonstrating areasonable justification for failing to submit them on the earlier motion (see Renna v Gullo,19 AD3d at 472). Thus, the Supreme Court properly denied that branch of the plaintiff'smotion which was for leave to renew. Skelos, J.P., Santucci, Balkin and Eng, JJ., concur.