| Ali v Verizon N.Y., Inc. |
| 2014 NY Slip Op 02401 [116 AD3d 722] |
| April 9, 2014 |
| Appellate Division, Second Department |
| Nahla N. Ali, Appellant, v Verizon New York,Inc., et al., Respondents. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Arthur R. Simuro andDonald S. Neumann, Jr., of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Queens County (Strauss,J.), dated April 26, 2012, as granted that branch of the defendants' motion which was forleave to renew their opposition to the plaintiff's motion for summary judgment on theissue of liability, which had been granted in a prior order of the same court dated January11, 2012, and, upon renewal, vacated the order dated January 11, 2012, and, thereupon,denied the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order dated April 26, 2012, is affirmed insofar as appealed from,with costs.
A motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination" (CPLR 2221 [e] [2]) and "shallcontain reasonable justification for the failure to present such facts on the prior motion"(CPLR 2221 [e] [3]; see Rakhav Pinnacle Bus Servs., 98 AD3d 657 [2012]; DeMarquez v Gallo, 94 AD3d1039, 1040 [2012]; Matterof Choy v Mai Ling Lai, 91 AD3d 772 [2012]; Ferdico v Zweig, 82 AD3d1151, 1153 [2011]). While a court has discretion to entertain renewal based on factsknown to the movant at the time of the original motion, the movant must set forth areasonable justification for the failure to submit the information in the first instance (see Deutsche Bank Trust Co. vGhaness, 100 AD3d 585, 585-586 [2012]; Yebo v Cuadra, 98 AD3d 504 [2012]), since " '[a] motionfor leave to renew is not a second chance freely given to parties who have not exerciseddue diligence in making their first factual presentation' " (Matter of Catherine V.D. [RachelG.], 100 AD3d 992, 993 [2012], quoting Worrell v Parkway Estates, LLC, 43 AD3d 436, 437[2007]).
Here, the Supreme Court providently exercised its discretion in granting that branchof the defendants' motion which was for leave to renew their opposition to the plaintiff'smotion for summary judgment on the issue of liability, which motion had been granted ina prior order. The defendants offered a reasonable excuse for not including an affidavitfrom a certain nonparty witness in their prior opposition to the motion (see Gonzalez v Vigo Constr.Corp., 69 AD3d 565, 565 [2010]; see [*2]also JRP Holding, Inc. vPratt, 113 AD3d 823 [2014]; De Cicco v Longendyke, 37 AD3d 934 [2007]). TheSupreme Court did not err in considering the affidavit of the nonparty, even though itwas signed and notarized in Florida and was not accompanied by a certification inaccordance with CPLR 2309 (c). This was not a fatal defect, as the plaintiff was notprejudiced thereby (see CPLR 2001; Matos v Salem Truck Leasing, 105 AD3d 916, 917 [2013];Fredette v Town ofSouthampton, 95 AD3d 940, 942 [2012]; Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]).
Upon renewal, the Supreme Court properly determined that there are triable issues offact with respect to liability for the subject accident, including the issue of comparativefault (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v Cityof New York, 49 NY2d 557 [1980]; see also Kusz v New York City Tr. Auth., 88 AD3d 768[2011]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Leventhal,Chambers and Maltese, JJ., concur.