| United Med. Assoc., PLLC v Seneca Ins. Co., Inc. |
| 2015 NY Slip Op 01629 [125 AD3d 959] |
| February 25, 2015 |
| Appellate Division, Second Department |
[*1]
| United Medical Associates, PLLC, Respondent, et al.,Plaintiff, v Seneca Insurance Company, Inc.,Appellant. |
Tese & Milner, New York, N.Y. (Michael Milner and Brendan B. Gilmartin ofcounsel), for appellant.
Hankin & Mazel, PLLC, New York, N.Y. (Mark L. Hankin of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract and for a judgmentdeclaring that the defendant is obligated to defend and indemnify United MedicalAssociates, PLLC, and Michael Richheimer in an underlying personal injury actionentitled Pendola v United Med. Assoc., PLLC, commenced in the SupremeCourt, Kings County, under index No. 1293/09, the defendant appeals from so much ofan order of the Supreme Court, Kings County (Rothenberg, J.), entered January 10, 2014,as denied that branch of its motion which was for leave to renew that branch of its priormotion which was for summary judgment declaring it is not so obligated with respect toUnited Medical Associates, PLLC, which had been denied in an order of the same courtdated May 2, 2013.
Ordered that the order entered January 10, 2014, is affirmed insofar as appealedfrom, with costs.
On October 1, 2009, United Medical Associates, PLLC (hereinafter United), andMichael Richheimer (hereinafter together the plaintiffs) commenced the instant actionagainst Seneca Insurance Company, Inc. (hereinafter the defendant), seeking, inter alia, ajudgment declaring that, pursuant to a commercial general liability insurance policy, thedefendant was obligated to defend and indemnify them in an underlying personal injuryaction that had been commenced against them. Following the completion of discovery,the defendant moved for summary judgment declaring that it had no duty to defend orindemnify the plaintiffs with respect to the underlying action. In an order dated May 2,2013, the Supreme Court granted that branch of the motion which was for summaryjudgment declaring that the defendant has no duty to defend or indemnify Richheimer.However, it denied that branch of the defendant's motion which was for summaryjudgment declaring it is not obligated to defend or indemnify United, holding that atriable issue of fact existed with respect to whether the timing of the defendant'sdisclaimer of coverage precluded an award of summary judgment. The defendantthereafter moved, inter alia, to renew that branch of its motion which was addressed toUnited. The Supreme Court denied the defendant's motion.
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 [*2]justification for the failure topresent such facts on the prior motion" (CPLR 2221 [e] [3]; see Ali v Verizon N.Y., Inc.,116 AD3d 722 [2014]; Okumus v Living Room Steak House, Inc., 112 AD3d 799,799 [2013]). While a court has discretion to entertain a renewal motion based on factsknown to the movant at the time that the original motion was made, the movant must setforth a reasonable justification for the failure to submit that information in the firstinstance (see Deutsche BankTrust Co. v Ghaness, 100 AD3d 585, 585-586 [2012]; Yebo v Cuadra, 98 AD3d504 [2012]).
Here, contrary to the defendant's assertion, the Supreme Court providently exercisedits discretion in denying that branch of its motion which was for leave to renew. Thedefendant failed to offer a reasonable justification for not submitting the allegedly newfacts, which consisted of a deposition transcript that was available at the time of thedefendant's initial summary judgment motion (see Rockefeller Univ. v TishmanConstr. Corp. of N.Y., 240 AD2d 341, 343 [1997]; see also Haberman v Meyer,120 AD3d 1301 [2014]; Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768 [2014];Vieyra v Penn Toyota, Ltd.,116 AD3d 840 [2014]; Okumus v Living Room Steak House, Inc., 112 AD3d 799[2013]; Forssell v Lerner,101 AD3d 807 [2012]). " '[A] motion for leave to renew is not a secondchance freely given to parties who have not exercised due diligence in making their firstfactual presentation' " (Matter of Catherine V.D. [Rachel G.], 100 AD3d 992, 993[2012], quoting Worrell vParkway Estates, LLC, 43 AD3d 436, 437 [2007]; see Jacobson v Adler, 119AD3d 902 [2014]; Singh vAvis Rent A Car Sys., Inc., 119 AD3d 768 [2014]). In any event, aconsideration of the allegedly new facts does not warrant a different outcome (see Hageman v Home DepotU.S.A., Inc., 45 AD3d 732 [2007]), as "[r]esolving questions of credibility,determining the accuracy of witnesses, and reconciling the testimony of witnesses are forthe trier of fact" (Kahan vSpira, 88 AD3d 964, 966 [2011]). Dillon, J.P., Dickerson, Cohen and Barros,JJ., concur.