| Derby v Bitan |
| 2013 NY Slip Op 08589 [112 AD3d 881] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Colleen Derby, Appellant, v Fabian Bitan,Respondent. |
—[*1] Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliot J. Zucker ofcounsel), for respondent.
In an action to recover damages for medical malpractice, lack of informed consent,and breach of contract, the plaintiff appeals from an order of the Supreme Court,Dutchess County (Pagones, J.), dated November 28, 2012, which granted the defendant'smotion for leave to renew his prior motion for summary judgment dismissing thecomplaint and, upon renewal, granted the defendant's prior motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d454, 454-455 [2005]; seeMi Ja Lee v Glicksman, 14 AD3d 669, 670 [2005]). Pursuant to CPLR 2221 (e),a motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination . . . and shall containreasonable justification for the failure to present such facts on the prior motion" (CPLR2221 [e] [2], [3]; see Estate ofEssig v 5670 58 St. Holding Corp., 66 AD3d 822, 822 [2009]). Furthermore, ona postappeal motion to renew, the movant bears a "heavy burden of showing duediligence in presenting the new evidence to the Supreme Court" in order to imbue theappellate decision with a degree of certainty (Levitt v County of Suffolk, 166AD2d 421, 423 [1990]; seeAbrams v Berelson, 94 AD3d 782, 787 [2012]; Andrews v New York City Hous.Auth., 90 AD3d 962, 963 [2011]; Estate of Essig v 5670 58 St. HoldingCorp., 66 AD3d at 823; seealso Specialized Realty Servs., LLC v Town of Tuxedo, 106 AD3d 987, 987[2013]; Sealey v WestendGardens Hous. Dev. Fund Co., Inc., 97 AD3d 653, 654-655 [2012]).
Here, the Supreme Court providently exercised its discretion in granting thedefendant leave to renew his prior motion for summary judgment dismissing thecomplaint. The defendant's submissions included new factual material that "wouldchange the prior determination" (CPLR 2221 [e] [2]), and the defendant demonstrated a"reasonable justification" for his failure to present such evidence in support of his priormotion (CPLR 2221 [e] [3]). Furthermore, the defendant sustained his heavy burden ofdemonstrating due diligence in presenting the new evidence to the Supreme Court(compare Abrams v Berelson, 94 AD3d at 787; Levitt v County ofSuffolk, 166 AD2d at 422-423).[*2]
Upon renewal, the Supreme Court providentlyexercised its discretion in reaching the merits of the defendant's prior motion forsummary judgment despite the fact that it was made one day beyond the statutorilyprescribed period for making such motions (see CPLR 3212 [a]). The newevidence submitted by the defendant in support of his renewal motion established goodcause for the de minimis delay (see generally DeFilippo v Miller, 106 AD3d 770, 771[2013]; Popalardo vMarino, 83 AD3d 1029, 1030 [2011]; Mayer v New York City Tr. Auth., 39 AD3d 349, 349[2007]; Castro v HomsunCorp., 34 AD3d 616, 617 [2006]; see also Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d725, 726-727 [2004]; Brillv City of New York, 2 NY3d 648, 652 [2004]).
In reaching the merits of the defendant's prior motion for summary judgment, uponrenewal, the Supreme Court properly determined that the defendant established, primafacie, his entitlement to summary judgment dismissing each of the three causes of actionasserted in the complaint alleging medical malpractice (see Tuorto v Jadali, 62 AD3d784, 784 [2009]), lack of informed consent (see Johnson v Staten Is. Med. Group, 82 AD3d 708, 709[2011]; Luu v Paskowski,57 AD3d 856, 858 [2008]), and breach of contract (see Scalisi v New York Univ. Med.Ctr., 24 AD3d 145, 147 [2005]; Dodes v North Shore Univ. Hosp., 149AD2d 455, 456 [1989]). The plaintiff's submissions in opposition, consisting of only anattorney affirmation, failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562-563 [1980]). Accordingly, upon renewal, theSupreme Court properly granted the defendant's prior motion for summary judgmentdismissing the complaint. Dickerson, J.P., Hall, Cohen and Miller, JJ., concur. [PriorCase History: 38 Misc 3d 516.]