| Yebo v Cuadra |
| 2012 NY Slip Op 05817 [98 AD3d 504] |
| August 1, 2012 |
| Appellate Division, Second Department |
| Joseph O. Yebo, Appellant, v Helene M. Cuadra,Respondent. |
—[*1] James G. Bilello, Westbury, N.Y. (Andrew Gentile of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ambrosio, J.), dated July 29, 2009, which denied his motionfor leave to reargue and renew his opposition to the defendant's prior motion, inter alia, forsummary judgment dismissing the complaint on the ground that he did not sustain a seriousinjury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident,which had been granted in an order of the same court dated February 9, 2009.
Ordered that the appeal from so much of the order dated July 29, 2009, as denied that branchof the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from anorder denying reargument; and it is further,
Ordered that the order dated July 29, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
On November 22, 2001, the plaintiff allegedly sustained personal injuries when a vehicleowned and operated by the defendant struck his vehicle. In August 2008, at a point in thelitigation when the plaintiff was not represented by counsel, the defendant moved, inter alia, forsummary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident. The plaintiff opposed the motion, relying upon a brief affidavit from his treatingphysician, which addressed the issue of serious injury by stating only that the plaintiff had beentotally and permanently disabled as a result of the November 2001 accident, and that hisdisability was not related to prior automobile accidents. In an order dated February 9, 2009, theSupreme Court granted that branch of the defendant's motion which was for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident. Shortly afterfiling a notice of appeal from the order dated February 9, 2009, the plaintiff, now represented bycounsel, moved for leave to reargue and renew his opposition to the defendant's prior motion. Insupport of the branch of his motion which sought leave to renew, the plaintiff submitted anadditional affirmation from his treating physician, [*2]whichdescribed the injuries the plaintiff had allegedly sustained in the November 2001 accident, anddisputed some of the findings set forth in the various physicians' reports that the defendant hadoffered in support of his summary judgment motion. In an order dated July 29, 2009, theSupreme Court denied the plaintiff's motion for leave to reargue and renew. The plaintiff alsoappealed from the order dated July 29, 2009. While the second appeal was pending, this Courtdismissed the plaintiff's earlier appeal for failure to perfect in accordance with the rules of thisCourt (see 22 NYCRR 670.8 [h]).
Contrary to the defendant's contention, the dismissal of the earlier appeal does not precludeour review of so much of the order dated July 29, 2009, as denied that branch of the plaintiff'smotion which was for leave to renew. As a general rule, we do not consider any issue raised on asubsequent appeal that was raised, or could have been raised, in an earlier appeal that wasdismissed for lack of prosecution, although we have the inherent jurisdiction to do so (seeRubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d350 [1976]). Here, since the issue of whether the plaintiff should have been granted leave torenew based upon the submission of an additional affirmation from his treating physician couldnot have been raised on the prior appeal, the rule articulated in Rubeo and Bray isinapplicable.
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to renew. A motion for leave to renew "shall be basedupon new facts not offered on the prior motion that would change the prior determination"(CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present suchfacts on the prior motion" (CPLR 2221 [e] [3]). The requirement that a motion for renewal bebased on new facts is a flexible one, and the Supreme Court has the discretion to grant renewalbased upon facts known to the moving party at the time of the original motion if the movantprovides a reasonable excuse for the failure to present those facts on the prior motion (see Doviak v Finkelstein & Partners,LLP, 90 AD3d 696, 700 [2011]; Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]; Gonzalez v Vigo Constr. Corp., 69AD3d 565, 566 [2010]). Nevertheless, a motion for leave to renew "is not a second chancefreely given to parties who have not exercised due diligence in making their first factualpresentation" (Renna v Gullo, 19AD3d 472, 473 [2005] [internal quotation marks omitted]; see Bazile v City of New York, 94AD3d 929 [2012]; Andrews v NewYork City Hous. Auth., 90 AD3d 962, 963 [2011]). Here, the additional affirmationfrom the plaintiff's treating physician was based on facts that were known to the plaintiff and hisphysician at the time the original motion for summary judgment was made in August 2008, andthe fact that the plaintiff was not represented by counsel at that time does not, standing alone,constitute a reasonable justification for his failure to obtain an adequate affirmation from hisphysician (see Calloway vCalloway, 17 AD3d 286 [2005]; see generally Matter of Evert, 72 AD3d 1081, 1082 [2010]; Walter v Jones, Sledzik, Garneau &Nardone, LLP, 67 AD3d 671, 672 [2009]). In any event, while the treating physician'sadditional affirmation was more detailed than his original affidavit, it nevertheless failed toprovide a sufficient basis to change the Supreme Court's prior determination awarding summaryjudgment to the defendant (see Ramirezv Khan, 60 AD3d 748, 749 [2009]). Rivera, J.P., Eng, Lott and Cohen, JJ., concur.