| Ayala v Gonzalez |
| 2015 NY Slip Op 05138 [129 AD3d 874] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Rosa Ayala, Individually and as ProposedAdministratrix of the Estate of Jose Ayala, Deceased, Respondent, v PatriciaRamona Gonzalez et al., Defendants, and Amsterdam Medical Practice, PLLC,Appellant. |
Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg andThomas A. Mobilia of counsel), for appellant.
Peña & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice and wrongfuldeath, the defendant Amsterdam Medical Practice, PLLC, appeals, as limited by its brief,from so much of an order of the Supreme Court, Kings County (Baynes, J.), datedFebruary 14, 2014, as denied that branch of its motion which was pursuant to CPLR2221 (e) for leave to renew its prior motion pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against it, which had been denied in an order of the samecourt dated February 7, 2013.
Ordered that the order dated February 14, 2014, 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 UnitedMed. Assoc., PLLC v Seneca Ins. Co., Inc., 125 AD3d 959 [2015]; Ali v Verizon N.Y., Inc., 116AD3d 722 [2014]; Okumusv Living Room Steak House, Inc., 112 AD3d 799, 799 [2013]).
Here, in support of its motion to renew, the defendant Amsterdam Medical Practice,PLLC (hereinafter Amsterdam), submitted exhibits which included an affirmation of itsprincipal, an affidavit of its bookkeeper, an affidavit of its accountant, and its operationalagreement. This evidence was available to Amsterdam when it made its prior motion todismiss the complaint insofar as asserted against it, and Amsterdam failed to set forth areasonable justification for failing to submit the evidence on the prior motion.Accordingly, the Supreme Court properly denied the branch of its motion seeking leaveto renew.
In light of our determination, we need not reach Amsterdam's remaining contentions.Rivera, J.P., Dickerson, Cohen and Barros, JJ., concur.