| Jacobson v Adler |
| 2014 NY Slip Op 05515 [119 AD3d 902] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Leon Jacobson, an Infant, by His Parent and NaturalGuardian, Beth Jacobsen, et al., Respondents, v Lauren Adler et al., Defendants,and New York Presbyterian Weill Cornell Medical Center,Appellant. |
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for appellant.
Meagher & Meagher, P.C., White Plains, N.Y. (Patrick J. McCorley of counsel),for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the defendant New York Presbyterian Weill Cornell Medical Centerappeals from an order of the Supreme Court, Westchester County (Murphy, J.), enteredOctober 2, 2012, which denied its motion for leave to renew its prior motion forsummary judgment dismissing the complaint insofar as asserted against it, which hadbeen denied in an order of the same court entered December 19, 2011.
Ordered that the order entered October 2, 2012, is affirmed, 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 Ali vVerizon N.Y., Inc., 116 AD3d 722 [2014]; Rakha v Pinnacle Bus Servs., 98 AD3d 657, 657 [2012];DeMarquez v Gallo, 94AD3d 1039, 1040 [2012]). While a court has discretion to entertain renewal basedon facts known to the movant at the time of the original motion, the movant must setforth a reasonable justification for the failure to submit the information in the firstinstance (see Deutsche BankTrust Co. v Ghaness, 100 AD3d 585, 585-586 [2012]; Yebo v Cuadra, 98 AD3d504, 506 [2012]), since a motion for leave to renew is not a second chance freelygiven to parties who have not exercised due diligence in making their first factualpresentation (see Ali v Verizon N.Y., Inc., 116 AD3d at 722; Matter of Catherine V.D. [RachelG.], 100 AD3d 992, 993 [2012]; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437[2007]).
Here, the Supreme Court correctly determined that, in support of its motion for leaveto renew its prior motion for summary judgment dismissing the complaint insofar asasserted against it, which had been denied in an order entered December 19, 2011, thedefendant New York Presbyterian Weill Cornell Medical Center (hereinafter theappellant) failed to furnish new facts not offered on the prior motion which would havechanged the prior determination, and failed to offer a reasonable justification for thefailure to present such facts on the prior motion (see Ferdico v Zweig, 82 AD3d 1151, 1153 [2011]).Accordingly, the Supreme Court providently exercised its discretion [*2]in denying the appellant's motion for leave to renew.
In light of our determination, we need not reach the appellant's remaining contention.Dickerson, J.P., Leventhal, Cohen and Hinds-Radix, JJ., concur.