| Haque v Daddazio |
| 2011 NY Slip Op 04041 [84 AD3d 940] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Ahsan Ul Haque, Respondent, v Mary J. Daddazio,Appellant. |
—[*1] Hausner & Montanile, PLLC, New York, N.Y. (Joseph A. Montanile of counsel), forrespondent.
In an action to recover damages for wrongful death and conscious pain and suffering, thedefendant appeals, as limited by her brief, from so much of an order of the Supreme Court,Westchester County (Nicolai, J.), dated October 21, 2010, as granted that branch of the plaintiff'smotion which was for leave to reargue his opposition to that branch of the defendant's priormotion which was for summary judgment dismissing the cause of action to recover damages forconscious pain and suffering which had been granted in an order entered February 24, 2010, uponreargument, vacated the original determination in the order entered February 24, 2010, andthereupon denied that branch of the defendant's motion.
Ordered that the order dated October 21, 2010, is reversed insofar as appealed from, on thelaw, on the facts, and in the exercise of discretion, with costs, that branch of the plaintiff's motionwhich was for leave to reargue is denied, and so much of the order entered February 24, 2010, asgranted that branch of the defendant's motion which was for summary judgment dismissing thecause of action to recover damages for conscious pain and suffering is reinstated.
The plaintiff's decedent was killed after she attempted to traverse Route 9 in Ossining onfoot, and was struck by a vehicle operated by the defendant. At the time of the accident, thedefendant's vehicle was proceeding northbound on Route 9, and there was no intersection orcrosswalk at the site of the accident. In an order entered February 24, 2010, the Supreme Courtgranted the defendant's motion for summary judgment dismissing the complaint. In an orderdated October 21, 2010, the Supreme Court, among other things, granted that branch of theplaintiff's motion which was for leave to reargue his opposition to that branch of the defendant'sprior motion which was for summary judgment dismissing the cause of action to recoverdamages for conscious pain and suffering, upon reargument, vacated the original determinationin the order entered February 24, 2010, and thereupon denied that branch of the defendant'smotion.
"[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious painand suffering, on a motion for summary judgment the defendant bears the initial burden ofshowing that the decedent did not endure conscious pain and suffering" (Gaida-Newman v Holtermann, 34AD3d 634, [*2]635 [2006]; see generally Cummins vCounty of Onondaga, 84 NY2d 322 [1994]; McDougald v Garber, 73 NY2d 246,255 [1989]; Schild v Kingsley, 5AD3d 103 [2004]). In support of that branch of her motion which was for summaryjudgment dismissing the cause of action to recover damages for conscious pain and suffering, thedefendant submitted, among other things, the decedent's medical records which demonstrated,prima facie, that the decedent was rendered unconscious immediately following the accident andremained so until her death eight hours later. In opposition, the plaintiff failed to raise a triableissue of fact. Although the plaintiff contended that there existed a triable issue of fact as towhether the defendant exercised due care to avoid the accident and that the defendant's motionwas premature, he did not address the issue of whether the decedent experienced any level ofcognitive awareness following the accident. Thereafter, in his motion for leave to reargue hisopposition to that branch of the defendant's motion which was for summary judgment dismissingthe cause of action to recover damages for conscious pain and suffering, the plaintiff merelyreiterated his prior contentions. The Supreme Court improvidently exercised its discretion ingranting that branch of the plaintiff's motion which was for leave to reargue his opposition to thatbranch of the defendant's prior motion which was for summary judgment dismissing the cause ofaction to recover damages for conscious pain and suffering, since the plaintiff failed to show thatthe Supreme Court overlooked or misapprehended the relevant facts or misapplied anycontrolling principle of law and, moreover, he improperly presented arguments not previouslyadvanced (see CPLR 2221 [d] [2]). A motion for leave to reargue "shall be based uponmatters of fact or law allegedly overlooked or misapprehended by the court in determining theprior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR2221 [d] [2]). A motion for leave to reargue "is not designed to provide an unsuccessful partywith successive opportunities to reargue issues previously decided, or to present argumentsdifferent from those originally presented" (Mazinov v Rella, 79 AD3d 979, 980 [2010], quoting McGill vGoldman, 261 AD2d 593, 594 [1999]).
Moreover, contrary to the plaintiff's contention, that branch of the defendant's prior motionwhich was for summary judgment dismissing the cause of action to recover damages forconscious pain and suffering was not premature. The plaintiff failed to demonstrate thatdiscovery may lead to relevant evidence or that the facts essential to oppose the motion wereexclusively within the knowledge and control of the defendant (see CPLR 3212 [f]; Westport Ins. Co. v Altertec EnergyConservation, LLC, 82 AD3d 1207 [2011]; Gasis v City of New York, 35 AD3d 533, 534 [2006]). The "merehope or speculation that evidence sufficient to defeat a motion for summary judgment may beuncovered during the discovery process is insufficient to deny the motion" (Gasis v City ofNew York, 35 AD3d at 534-535 [2006]). Mastro, J.P., Balkin, Leventhal and Belen, JJ.,concur.