| Smith v State of New York |
| 2010 NY Slip Op 02125 [71 AD3d 866] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Sharon Smith, Appellant, v State of New York,Respondent, et al., Defendants. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Nancy A. Spiegel, Julie M.Sheridan, and Pat J. Walsh of counsel), for respondent.
In a claim to recover damages for medical malpractice, the claimant appeals from an order ofthe Court of Claims (Soto, J.), dated September 30, 2008, which denied her motion, denominatedas one for leave to renew but which was, in actuality, one for leave to renew and reargue hermotion to vacate the dismissal of the claim and restore it to the active calendar.
Ordered that the appeal from so much of the order as denied that branch of the motion whichwas, in actuality, for leave to reargue is dismissed, as no appeal lies from an order denying leaveto reargue; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The Court of Claims dismissed the instant claim after the claimant's attorney failed to appearfor a conference (see 22 NYCRR 206.10 [g]). In support of her motion to vacate thedismissal and restore the case to the active calendar, the claimant submitted evidence that thefailure to appear was attributable to excusable law office failure, but she failed to submit aphysician's affidavit of merit (see Gourdet v Hershfeld, 277 AD2d 422, 422-423 [2000]).After this deficiency was pointed out in the opposition papers, the claimant did not seek toremedy the defect, but insisted in reply that the claim was to recover damages for negligence, notmalpractice, so that no expert affidavit was necessary. The court rejected this argument andfound that, although the failure to appear at the conference was excusable, the claimant had notdemonstrated that she had a meritorious claim. The claimant moved for what she denominated asleave to renew her motion, this time submitting the required physician's affidavit to establish themerit of her claim (see Mevorah v King, 303 AD2d 657 [2003]; Tolliver v County ofNassau, 231 AD2d 708 [1996]). The Court of Claims denied the motion, viewing it as onefor leave to reargue, but also treating it, in the alternative, as one for leave to renew.
On appeal, the claimant contends that her motion was solely for leave to renew, but she[*2]continues to assert that the court misconstrued the nature ofher claim, at least in part, and that no physician's affidavit was necessary with respect to thenegligence aspects of her claim. That argument is in the nature of reargument. Inasmuch as thedenial of a motion for leave to reargue is not appealable, we dismiss so much of the appeal asseeks review of the denial of leave to reargue (see North Sea Country Gardens v Venuti,238 AD2d 324 [1997]; Navaro v Ieraci, 214 AD2d 713 [1995]).
"Although a motion for leave to renew generally must be based on newly-discovered facts,this requirement is a flexible one, and a court has the discretion to grant renewal upon factsknown to the movant at the time of the original motion, provided that the movant offers areasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v Liberty Mut.Ins., 58 AD3d 727, 728 [2009]; see Matter of Gold v Gold, 53 AD3d 485, 487 [2008]). Leave torenew, however, is not freely given to a party who has not exercised due diligence in making theinitial factual presentation (see Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3dat 728; Elder v Elder, 21 AD3d1055, 1055 [2005]). Here, the Court of Claims did not improvidently exercise its discretionin denying that branch of the motion which was, in effect, for leave to renew, because theclaimant failed to offer a reasonable justification for failing to present the physician's affidavit inthe first motion (see Hassell v NewYork Univ. Med. Ctr. 48 AD3d 632 [2008]). The claimant insisted that it wasreasonable to conclude, albeit mistakenly, that no affidavit of merit was necessary because theclaim was to recover damages for negligence, rather than medical malpractice. This excuse didnot amount to a reasonable justification for failing to submit an affidavit of merit, given herearlier recognition, implicit in the statement of merit submitted with her amended verified claimand explicit in her notice of motion to vacate the dismissal, that the claim was to recoverdamages for medical malpractice, rather than negligence. Fisher, J.P., Miller, Eng and Hall, JJ.,concur.