| Rappaport v North Shore Univ. Hosp. |
| 2009 NY Slip Op 02579 [60 AD3d 1029] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Steven Rappaport et al., Appellants, v North ShoreUniversity Hospital et al., Respondents. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), datedMay 29, 2008, as denied that branch of their motion which was for leave to renew their priormotion, in effect, to vacate the dismissal of the action pursuant to CPLR 3216 and to restore theaction to the active calendar, which had been determined in an order of the same court datedMarch 14, 2008.
Ordered that the order is affirmed insofar as appealed from, with costs.
After the plaintiffs failed to file a note of issue in compliance with a certification order datedJuly 8, 2005, the action was dismissed pursuant to CPLR 3216 on October 28, 2005. Almost twoyears later, the plaintiffs moved, in effect, to vacate the dismissal and to restore the action to theactive calendar. The Supreme Court denied the plaintiffs' motion on the ground that the plaintiffsfailed to provide an affidavit of merit from a medical expert. The plaintiffs subsequently moved,inter alia, for leave to renew their motion to vacate, supported by a physician's affidavit of merit.The court denied that branch of the plaintiffs' motion which was for leave to renew, finding thatthe plaintiffs had failed to establish a valid excuse for not submitting the expert affidavit with theprior motion to vacate.
A motion for leave to renew must be based upon new facts not offered on the prior motion[*2]that would change the prior determination, and the motionmust also contain a reasonable justification for the failure to present such facts on the priormotion (see CPLR 2221 [e]; Chunqi Liu v Wong, 46 AD3d 735 [2007];Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722 [2007]; Williams vNassau County Med. Ctr., 37 AD3d 594 [2007]). Here, the affidavit of merit, which wasconclusory, would not have changed the prior determination, as it was insufficient to establishthat the medical malpractice action was meritorious (see Nowell v NYU Med. Ctr., 55AD3d 573, 574 [2008]; Bollino v Hitzig, 34 AD3d 711 [2006]; Perez v Astoria Gen.Hosp., 260 AD2d 457, 458 [1999]). Since the new affidavit proffered by the plaintiffs wouldnot have changed the prior determination, that branch of the plaintiffs' motion which was forleave to renew was properly denied (see Peycke v Newport Media Acquisition II, Inc.,40 AD3d 722 [2007]; Williams v Nassau County Med. Ctr., 37 AD3d 594 [2007]).Spolzino, J.P., Ritter, Covello and Belen, JJ., concur.