| Hackney v Monge |
| 2013 NY Slip Op 01233 [103 AD3d 844] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Dana Hackney, Respondent, v Victoriano Monge,Appellant. |
—[*1] Spar & Bernstein, P.C., New York, N.Y. (Jared R. Cooper and Vanessa Chaikin ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Westchester County(Colabella, J.), entered February 8, 2012, as denied that branch of his motion which wasfor leave to renew his opposition to the plaintiff's motion for summary judgment on theissue of liability, which had been granted in an order of the same court entered August23, 2011.
Ordered that the order entered February 8, 2012, is affirmed insofar as appealedfrom, with costs.
On August 9, 2010, while on West First Street in the City of Mount Vernon, theplaintiff allegedly was stopped in her vehicle waiting to make a left turn onto SouthSeventh Avenue, when the defendant's vehicle collided with the rear of her vehicle. Theplaintiff commenced this action, and subsequently moved for summary judgment on theissue of liability. The Supreme Court granted the motion on the ground that thedefendant's affidavit submitted in opposition was without probative value because thesecond page, presumably containing the defendant's notarized signature, was omitted.The Supreme Court further determined that, in any event, the defendant's affidavit failedto raise a triable issue of fact. The defendant moved, inter alia, for leave to renew hisopposition to the plaintiff's motion, submitting the second page of his affidavit with hisnotarized signature. The Supreme Court denied that branch of the defendant's motion.
Under CPLR 2221 (e), a motion for leave to renew "shall be based upon new factsnot offered on the prior motion that would change the prior determination," and must"contain reasonable justification for the failure to present such facts on the prior motion.""CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts notoffered on the prior motion, facts contained in a document originally rejected forconsideration because the document was not in admissible form" (Schwelnus v Urological Assoc. ofL.I., P.C., 94 AD3d 971, 972 [2012]). The second page of the defendant'saffidavit containing his notarized signature constituted a new fact, and the defendant'sinadvertent omission in failing to include that page with the papers submitted to theSupreme Court was tantamount to law office failure which, under the circumstances ofthis case, constitutes a reasonable justification (see Gordon v Boyd, 96 AD3d 719, 720 [2012];Schwelnus v [*2]Urological Assoc. of L.I., P.C.,94 AD3d at 972; Arkin vResnick, 68 AD3d 692, 694 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389,391 [2008]).
Nevertheless, the defendant's affidavit would not change the prior determination. Inopposition to the plaintiff's prima facie showing (see Abbott v Picture Cars E., Inc., 78 AD3d 869 [2010]),the defendant's affidavit did not rebut the inference of negligence created by the fact thatthe defendant's vehicle struck the plaintiff's vehicle from the rear. "[V]ehicle stops whichare foreseeable under the prevailing traffic conditions . . . must beanticipated by the driver who follows, since he or she is under a duty to maintain a safedistance between his or her car and the car ahead" (Shamah v Richmond CountyAmbulance Serv., 279 AD2d 564, 565 [2001]; see Taing v Drewery, 100 AD3d 740 [2012]). Here, in theabsence of any evidence that the defendant was maintaining a reasonably safe distanceand speed behind the plaintiff's vehicle as required by Vehicle and Traffic Law §1129 (a), his claim that the plaintiff's vehicle came to a sudden stop was insufficient toraise a triable issue of fact as to whether there was a nonnegligent explanation for thecollision (see Hearn v Manzolillo, 103 AD3d 689 [2d Dept 2013]; Taing v Drewery, 100 AD3d740 [2012]; Kastritsios vMarcello, 84 AD3d 1174, 1175 [2011]; Shamah v Richmond CountyAmbulance Serv., 279 AD2d at 565).
Accordingly, the Supreme Court properly denied that branch of the defendant'smotion which was for leave to renew his opposition to the plaintiff's motion for summaryjudgment (see Kranenberg vTKRS Pub, Inc., 99 AD3d 769 [2012]). Rivera, J.P., Chambers, Hall and Miller,JJ., concur.