| Garland v RLI Ins. Co. |
| 2010 NY Slip Op 09623 [79 AD3d 1576] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Arlene S. Garland, As Executrix of Richard T. Shanor and GanelleM. Shanor, Deceased, Appellant-Respondent, v RLI Insurance Company,Respondent-Appellant, et al., Defendant. |
—[*1] Hurwitz & Fine, P.C., Buffalo (Dan D. Kohane of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Erie County (Patrick H.NeMoyer, J.), entered April 28, 2009. The order granted the motion of plaintiff for leave torenew and reargue and, upon reargument, denied the motion of plaintiff and the cross motion ofdefendant RLI Insurance Company for summary judgment.
It is hereby ordered that the order so appealed from is reversed on the law without costs andthe motion for leave to renew and reargue is denied.
Memorandum: Supreme Court erred in granting the motion of plaintiff seeking leave to"renew and reargue" her motion for, inter alia, summary judgment on the complaint and toreargue her opposition to the cross motion of RLI Insurance Company (defendant) for summaryjudgment dismissing the complaint against it. With respect to that part of the motion seekingleave to renew, it "must be based upon new facts that were unavailable at the time of the originalmotion" (Boreanaz vFacer-Kreidler, 2 AD3d 1481, 1482 [2003]; see Foxworth v Jenkins, 60 AD3d 1306 [2009]). "Although a courthas discretion to 'grant renewal, in the interest of justice, upon facts [that] were known to themovant 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]; see Foxworth, 60 AD3d 1306[2009]). Here, the allegedly "new" evidence submitted by plaintiff consists of an affidavit of herattorney detailing his efforts to ascertain the insurance coverage in question from the time that hewas retained until plaintiff notified defendant of the accident, approximately 20 months later. It isundisputed that those facts were known to plaintiff at the time of her prior motion, and the onlyexcuse provided by plaintiff for failing to submit the affidavit of her attorney in support of thatmotion was her mistaken belief that such facts were not relevant to the issue whether her noticeto defendant was timely. We conclude that, under the circumstances of this case, the inability ofplaintiff to identify the applicable legal standard does not constitute a reasonable justification forher failure to submit the affidavit in support of the [*2]priormotion (see generally Valenti v ExxonMobil Corp., 50 AD3d 1382, 1383 [2008]; Zarecki & Assoc., LLC v Ross, 50 AD3d 679 [2008]; Reshevsky v United Water N.Y., Inc.,46 AD3d 532 [2007], lv dismissed 10 NY3d 785 [2008]).
With respect to those parts of the motion of plaintiff seeking leave to reargue her priormotion and her opposition to defendant's cross motion, they must be "based upon matters of factor law allegedly overlooked or misapprehended by the court in determining the prior motion [andcross motion]" (CPLR 2221 [d] [2]). "Reargument does not provide a party 'an opportunity toadvance arguments different from those tendered on the original application' " (Rubinstein vGoldman, 225 AD2d 328, 328 [1996], lv denied 88 NY2d 815 [1996]). Here, thoseparts of plaintiff's motion seeking leave to reargue were premised upon a legal theory notadvanced in support of the original motion or in opposition to defendant's cross motion, and thusthey should have been denied (see V.Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2010]).
All concur except Sconiers, J., who dissents and votes to affirm in the followingmemorandum.
Sconiers, J. (dissenting). I respectfully dissent, inasmuch as I disagree with my colleaguesthat Supreme Court erred in granting the motion of plaintiff seeking leave to "renew and reargue"her motion for, inter alia, summary judgment on the complaint and to reargue her opposition tothe cross motion of RLI Insurance Company (defendant) for summary judgment dismissing thecomplaint against it. In granting that part of the motion seeking leave to renew, the courtcarefully considered the factors set forth in CPLR 2221 (e) and specifically addressed "[t]hecritical issue . . . whether plaintiff . . . presented a reasonablejustification for her failure to present such facts on the prior motion." In addition to concluding"that plaintiff . . . furnished a reasonable justification for failing to adduce the newfacts on the prior motion," the court understandably was "not inclined to ignore the newlydeterminative fact that plaintiff . . . may . . . have exercised duediligence in attempting to ascertain the tortfeasors' insurance situation[, especially where]ignor[ing] that critical fact would be to deprive plaintiff of significant legal rights[ ] and to permitan unjustified evasion of defendant['s] . . . significant contractual responsibilities."
In a case such as this, where the court gave due weight and consideration to the relevantfactors in granting that part of the motion seeking leave to renew, we should not second guess thecourt's exercise of discretion, especially where doing so would deprive a party of a determinationon the merits. It is one thing to reverse an order denying a motion seeking leave to renew andthereby decide a case on the merits (seeFoxworth v Jenkins, 60 AD3d 1306 [2009]), but it is quite another to reverse an ordergranting a motion seeking leave to renew, thus depriving a party of the benefit of a determinationon the merits. This Court has been, and should be, reluctant to do so. In fact, I could find onlyone instance since CPLR 2221 was amended in 1999 where this Court reversed an order grantinga motion seeking leave to renew, and that was in a case where virtually no justification wasprovided for the "failure to produce the additional proof on the prior motion" (Robinson v Consolidated Rail Corp., 8AD3d 1080 [2004]). Further, this Court has not previously reversed an order granting amotion seeking leave to reargue where the motion was timely.
When CPLR 2221 was substantially amended in 1999, the Committee on Civil Practice Lawand Rules of the New York State Bar Association (hereafter, Committee) approved thelegislation but noted that it was divided because some members of the Committee expressedconcern that the "legislation . . . might be interpreted to . . . effectivelydeprive courts of flexibility needed in this area" (Mem of Committee, Bill Jacket, L 1999, ch281). In supporting the legislation, however, the Committee concluded that "[t]he new proposaldoes allow for judicial discretion and flexibility" (id.). Unfortunately, it appears thatthose concerns were warranted (see e.g.V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2010]). The fundamental andoverriding purpose of CPLR 2221 should be to give courts and litigants every reasonable [*3]opportunity to obtain the legally correct and just result based on themerits of the case. Here, while plaintiff may have ultimately been unsuccessful in recovering theproceeds of the insurance policy in question, she should have been afforded the opportunity toresolve her claim for coverage on the merits. I therefore would affirm the order for the reasonsstated at Supreme Court. Present—Scudder, P.J., Centra, Peradotto, Sconiers and Pine, JJ.