| DeMarquez v Gallo |
| 2012 NY Slip Op 03130 [94 AD3d 1039] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Bruna DeMarquez, Appellant, v Angelo Gallo et al.,Respondents. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated April 11, 2011, which denied her motion forleave to renew her prior motion to restore the action to the trial calendar, which had been deniedin an order of the same court dated August 4, 2009.
Ordered that the order dated April 11, 2011, is reversed, on the facts and in the exercise ofdiscretion, with costs, the plaintiff's motion for leave to renew her prior motion to restore theaction to the trial calendar is granted, upon renewal, the order dated August 4, 2009, is vacated,the plaintiffs' motion to restore the action to the trial calendar is granted, and the action isrestored to the trial calendar for an immediate trial without any further motion practice related tothe restoration of the action.
On March 22, 2007, the plaintiff, a passenger in a motor vehicle, was involved in an accidentwith another motor vehicle, owned and operated by the defendants. The plaintiff commenced thisaction against the defendants to recover damages for personal injuries allegedly sustained by heras a result of the defendants' negligence. After the plaintiff filed a note of issue, on May 15, 2001,the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Courtdirected the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325 (d). Dueto a clerical error, the case was inadvertently marked off the trial calendar rather than transferredto the Civil Court.
Upon discovering this clerical error, the plaintiff moved to restore the case to the trialcalendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiffappealed and, by decision and order dated May 23, 2006, this Court reversed the order datedAugust 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar(see DeMarquez v Gallo, 29 AD3d853 [2006]).
Subsequent to this Court's decision and order dated May 23, 2006, restoring the action to thetrial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that shehad to move again to restore the action. As a result, the plaintiff made a subsequent motion torestore the action, relying upon this Court's decision and order dated May 23, 2006. The SupremeCourt denied the plaintiff's motion in an order dated August 4, 2009.[*2]
After first moving unsuccessfully to reargue the motion torestore, the plaintiff moved for leave to renew her motion to restore the action to the trialcalendar. In the order appealed from, the Supreme Court denied the plaintiff's motion for leave torenew. The plaintiff appeals and we reverse.
A motion for leave to renew "shall be based upon new facts not offered on the prior motionthat would change the prior determination" and "shall contain reasonable justification for thefailure to present such facts on the prior motion" (CPLR 2221 [e] [2], [3]; see Matter of Choy v Mai Ling Lai, 91AD3d 772 [2012]; Ferdico vZweig, 82 AD3d 1151, 1153 [2011]; Barnett v Smith, 64 AD3d 669, 670 [2009]; Chernysheva v Pinchuck, 57 AD3d936 [2008]; Dinten-Quiros vBrown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). The requirement that amotion for renewal must be based on new facts is a flexible one (see Dervisevic v Dervisevic, 89 AD3d785, 787 [2011]; J.D. Structures v Waldbaum, 282 AD2d 434, 436 [2001];Cole-Hatchard v Grand Union, 270 AD2d 447, 447 [2000]; Daniel Perla Assoc. vGinsberg, 256 AD2d 303 [1998]). Under the circumstances of this case, the Supreme Courtimprovidently exercised its discretion in denying the motion for leave to renew (see Del Bene v Frank C. Perry, DDS,P.C., 83 AD3d 771, 772 [2011]; Daria v Beacon Capital Co., 299 AD2d 312[2002]; Malik v Campbell, 289 AD2d 540 [2001]). In addition, upon renewal, theSupreme Court should have granted the plaintiff's motion to restore the case to the trial calendar(see DeMarquez v Gallo, 29 AD3d at 853; see also Kahgan v Alwi, 67 AD3d 742 [2009]; Rodriguez v United Parcel Serv., Inc. ofOhio, 17 AD3d 658, 658 [2005]; Magnone v Gemm Custom Brokers, Inc., 17 AD3d 412 [2005]).Balkin, J.P., Chambers, Hall and Austin, JJ., concur.