| Gonzalez v Vigo Constr. Corp. |
| 2010 NY Slip Op 00100 [69 AD3d 565] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Martin C. Gonzalez, by His Guardian ad Litem, GuadalupeRomero Reyes, Respondent, v Vigo Construction Corp., Defendant/Third-PartyPlaintiff-Appellant-Respondent, et al., Defendant/Third-Party Plaintiff. East Wind Contracting,Inc., Third-Party Defendant-Respondent-Appellant. |
—[*1] Baxter Smith Tassan & Shapiro P.C., White Plains, N.Y. (Gregory Allen and Sim R. Shapiroof counsel), for third-party defendant-respondent-appellant. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant Vigo Construction Corp.appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Dollard, J.), dated February 22, 2008, as granted, in effect, the plaintiff's motion for leave torenew his opposition to that branch of the motion of Vigo Construction Corp. which was forsummary judgment dismissing the complaint insofar as asserted against it, which had beengranted in an order of the same court dated July 30, 2007, and, upon renewal, vacated thatportion of the order dated July 30, 2007, and denied that branch of the motion of VigoConstruction Corp. which was for summary judgment dismissing the complaint insofar asasserted against it, and East Wind Contracting, Inc., cross-appeals, as limited by its brief, fromthe same portion of the order dated February 22, 2008, and so much of that order as, uponrenewal, denied with leave to renew, upon submission of the original motion, that branch of themotion of Vigo Construction Corp. which was for summary judgment on its contractualindemnification claim against East Wind Contracting, Inc.
Ordered that order is affirmed insofar as appealed and cross-appealed from, with one bill ofcosts to the plaintiff, payable by Vigo Construction Corp. and East Wind Contracting, Inc., andone bill of costs to Vigo Construction Corp., payable by East Wind Contracting, Inc.
A motion for leave to renew "shall be based upon new facts not offered on the prior motionthat would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Ramirez v Khan, 60 AD3d748 [2009]; Lardo v Rivlab Transp.Corp., 46 AD3d 759 [2007]). The requirement that a motion [*2]for renewal be based on new facts is a flexible one, and it is withinthe court's discretion to grant renewal upon facts known to the moving party at the time of theoriginal motion "if the movant offers a reasonable excuse for the failure to present those facts onthe prior motion" (Matter of Surdo vLevittown Pub. School Dist., 41 AD3d 486, 486 [2007]; Heaven v McGowan, 40 AD3d583, 586 [2007]).
Here, the Supreme Court providently exercised its discretion in granting that branch of theplaintiff's motion which was for leave to renew his opposition to that branch of prior motion ofVigo Construction Corp. which was for summary judgment dismissing the complaint insofar asasserted against it. The plaintiff offered a reasonable excuse for not including an affidavit from anonparty witness in opposition to the original motion (see De Cicco v Longendyke, 37 AD3d 934 [2007]; Brignol vWarren El. Serv. Co., 240 AD2d 354 [1997]; Tesa v Transit Auth. of City of N.Y.,184 AD2d 421, 423 [1992]). The misidentification of an eyewitness to the subject accident,by not stating his correct surname in the police report, resulted in a reasonable delay in locatingthe eyewitness and obtaining his affidavit (id.).
Upon renewal, the Supreme Court properly determined that there are triable issues of factwith respect to liability for the subject accident (see generally Alvarez v Prospect Hosp.,68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
The parties' remaining contentions are either academic or without merit. Dillon, J.P., Florio,Balkin and Austin, JJ., concur.