| Baldwin v Mateogarcia |
| 2009 NY Slip Op 07568 [66 AD3d 806] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Jesse Baldwin, Appellant, v Cristino Mateogarcia et al.,Respondents, et al., Defendant. (And a Related Action.) |
—[*1] Weiner Millo & Morgan, LLC, New York, N.Y. (Amy L. Pludwin of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from so much ofan order of the Supreme Court, Nassau County (McCarty, J.), entered June 1, 2009, as grantedthat branch of the motion of the defendants Cristino Mateogarcia and Superior Laundry Services,LLC, which was for leave to renew their opposition to the plaintiff's prior motion for leave toenter a default judgment against them, which had been granted in a decision and order of thisCourt dated December 9, 2008 (seeBaldwin v Mateogarcia, 57 AD3d 594 [2008]), and, upon renewal, denied his motion.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and therespondents' motion for leave to renew is denied.
A motion for leave to renew must be "based upon new facts not offered on the prior motionthat would change the prior determination," and the movant must state a "reasonable justificationfor the failure to present such facts on the prior motion" (CPLR 2221 [e]; see Yarde v New York City Tr. Auth.,4 AD3d 352 [2004]; Riccio v Deperalta, 274 AD2d 384 [2000]). In this case, whicharises out of an automobile accident, the respondents' newly discovered evidence consisted of anaffidavit of the defendant driver Cristino Mateogarcia who allegedly could not be located sooner.However, Mateogarcia's purported unavailability cannot serve as a "reasonable justification" forthe respondents' failure to present an affidavit of merit at the time the plaintiff originally movedfor leave to enter a default judgment against them in light of the respondents' lack of duediligence in obtaining the affidavit. Accordingly, the Supreme Court should not have grantedleave to renew. Skelos, J.P., Covello, Santucci, Chambers and Austin, JJ., concur.