| Foxworth v Jenkins |
| 2009 NY Slip Op 02033 [60 AD3d 1306] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Margaretta Foxworth, Respondent, v John Jenkins, Defendant, andArthur E. Phillips, Appellant. |
—[*1] Vinal & Vinal, Amherst (Jeanne M. Vinal of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredMarch 12, 2008 in a personal injury action. The order, insofar as appealed from, denied that partof the motion of defendant Arthur E. Phillips for leave to renew his motion to vacate a defaultjudgment and order awarding damages against him.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, that part of the motion for leave to renew is granted and, upon renewal, themotion to vacate the default judgment and order awarding damages is granted, the judgmententered July 26, 2006 and the order dated October 26, 2006 are vacated in their entirety, anddefendant Arthur E. Phillips is granted 20 days from service of the order of this Court withnotice of entry to serve and file an answer.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the motor vehicle she was operating was rear-ended by a vehicle owned bydefendant Arthur E. Phillips and operated by defendant John Jenkins. On a prior appeal, weaffirmed the order denying the motion of Phillips seeking, inter alia, to vacate the defaultjudgment against him (Foxworth vJenkins, 48 AD3d 1261 [2008]). We conclude that Supreme Court erred in denying thatpart of the motion of Phillips for leave to renew his motion to vacate the default judgment andorder awarding damages against him. "A motion for leave to renew must be based upon newfacts that were unavailable at the time of the original motion" and that would change the priordetermination (Boreanaz vFacer-Kreidler, 2 AD3d 1481, 1482 [2003]; see CPLR 2221 [e] [2]). "Althougha court has discretion to grant renewal, in the interest of justice, upon facts which were known tothe movant at the time the original motion was made . . . , it may not exercise thatdiscretion unless the movant establishes a reasonable justification for the failure to present suchfacts on the prior motion" (Robinson vConsolidated Rail Corp., 8 AD3d 1080 [2004] [internal quotation marks omitted]).Here, the affidavit of Jenkins submitted in support of the motion for leave to renew presents newfacts with respect to the cause of the collision, and Phillips offered a reasonable excuse forfailing to submit the affidavit in support of his prior motion inasmuch as Jenkins could not belocated for approximately one year from the time Phillips learned of the default judgment againsthim. Moreover, the affidavit of Jenkins provided [*2]anonnegligent explanation for the collision (see Ramadan v Maritato, 50 AD3d 1620, 1621 [2008]).Present—Scudder, P.J., Hurlbutt, Martoche, Green and Gorski, JJ.