Snolis v Clare

2011 NY Slip Op 01456

Decided on February 22, 2011

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 22, 2011
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2010-02773
(Index No. 4354/05)






Cerussi & Gunn, P.C. (Thomas Torto and Jason Levine, New York,
N.Y., of counsel), for appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y.
(Peter L. Contini and Daniel M. Maunz
of counsel), for respondents.


DECISION & ORDER

In an action to recover damages for legal malpractice and breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated February 1, 2010, as denied their cross motion for leave to renew their prior motion for summary judgment on their cause of action to recover damages for legal malpractice insofar as asserted against the defendants William J. Poisson and Poisson & Hackett, Esqs., which had been denied in an order of the same court dated August 17, 2009.

ORDERED that the order dated February 1, 2010, is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied the plaintiffs' cross motion for leave to renew their prior motion for summary judgment on their cause of action to recover damages for legal malpractice insofar as asserted against the defendants William J. Poisson and Poisson & Hackett, Esqs. The motion was based on an expert's affidavit submitted for the first time. However, the plaintiffs failed to offer a reasonable justification for failing to present this evidence on their original motion (see CPLR 2221[e]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533). In any event, under the circumstances, the affidavit was insufficient to warrant a change of the prior determination (see Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d at 512; Reshevsky v United Water N.Y., Inc., 46 AD3d at 533).
SKELOS, J.P., DICKERSON, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court