| Gordon v Boyd |
| 2012 NY Slip Op 04320 [96 AD3d 719] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Adrian Gordon, Respondent, v Lewitt Orlando Boyd et al.,Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Giacomo, J.), entered September 21, 2011, whichgranted that branch of the plaintiff's motion which was for leave to renew his opposition to theirmotion pursuant to CPLR 3211 (a) (1) and (5) to dismiss the complaint, which had been grantedin an order of the same court entered March 29, 2011, and upon renewal, in effect, vacated theorder entered March 29, 2011, and thereupon denied their motion pursuant to CPLR 3211 (a) (1)and (5) to dismiss the complaint.
Ordered that the order entered September 21, 2011, is affirmed, without costs ordisbursements.
A motion for leave to renew pursuant to CPLR 2221 (e) "may, in the Supreme Court'sdiscretion, be based on facts known to the party seeking renewal at the time of the originalmotion," but the movant must offer "a reasonable justification for the failure to present such factson the original motion" (Dervisevic vDervisevic, 89 AD3d 785, 786 [2011] [internal quotation marks omitted]). "Law officefailure can be accepted as a reasonable excuse in the exercise of the court's sound discretion" (Nwauwa v Mamos, 53 AD3d 646,649 [2008]). Under the circumstances of this case, the Supreme Court did not improvidentlyexercise its discretion in granting that branch of the plaintiff's motion which was for leave torenew his opposition to the defendants' motion to dismiss the complaint on the ground of lawoffice failure (id.).
Upon renewal, the Supreme Court properly, in effect, vacated its previous order and deniedthe defendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (5). Thedocument submitted by the defendants in support of their motion to dismiss was a releaseallegedly signed by the plaintiff. Upon renewal, in opposition to the motion, the plaintiffsubmitted evidence in support of his allegation that he did not personally sign the release and itwas signed by someone without authority to act on his behalf. Under these circumstances, thedefendants were not entitled to dismissal pursuant to CPLR 3211 (a) (1) since the documentaryevidence submitted by them failed to utterly refute the plaintiff's factual allegations andconclusively establish a defense as a matter of law (see Farber v Breslin, 47 AD3d 873, 876 [2008]). Moreover, theplaintiff sufficiently averred grounds for setting aside the release, and therefore, the defendantswere not entitled to dismissal pursuant to [*2]CPLR 3211 (a) (5)(see Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]; Storman v Storman, 90 AD3d 895,898 [2011]; Farber v Breslin, 47 AD3d at 877; Anger v Ford Motor Co., DealerDev., 80 AD2d 736 [1981]). Angiolillo, J.P., Eng, Lott and Cohen, JJ., concur.