| Ramirez v Khan |
| 2009 NY Slip Op 01788 [60 AD3d 748] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Orlando Ramirez, Appellant, v Javed Akhter Khan,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.), enteredSeptember 24, 2007, as denied that branch of his motion which was for leave to renew hisopposition to the defendant's prior motion for summary judgment dismissing the complaint onthe ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d), which had been granted in an order entered April 24, 2007.
Ordered that the order entered September 24, 2007, is affirmed insofar as appealed from,with costs.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to renew his opposition to the defendant's motion forsummary judgment (see Renna vGullo, 19 AD3d 472 [2005]). A motion for leave to renew "shall be based upon newfacts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e][2]) and "shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [3]; seeDinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). While it may be withinthe court's discretion to grant leave to renew upon facts known to the moving party at the time ofthe original motion (see J.D. Structures v Waldbaum, 282 AD2d 434 [2001];Cronwall Equities v International Links Dev. Corp., 255 AD2d 354 [1998]), a motion forleave to renew " 'is not a second chance freely given to parties who have not exercised duediligence in [*2]making their first factual presentation' "(Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d328, 329 [1996]; see also O'Dell vCaswell, 12 AD3d 492 [2004]; Hart v City of New York, 5 AD3d 438 [2004]; Carota vWu, 284 AD2d 614 [2001]). In this case, the plaintiff failed to provide reasonablejustification for the failure to include the affirmation of Dr. Robert Scott Schepp on the priormotion (see Renna v Gullo, 19 AD3d at 472). In any event, that affirmation would nothave changed the prior determination awarding summary judgment to the defendant(id.). Skelos, J.P., Santucci, Angiolillo, Dickerson and Chambers, JJ., concur.