Antwi v. HVT, Inc., 2009 NY Slip Op 51937(U) (N.Y. Sup. Ct. 9/11/2009)
| Decision Date | 11 September 2009 |
| Docket Number | 304420/08 |
| Parties | BISMARK ANTWI, Plaintiff, v. HVT, INC., AND ELIZABETH BARGELLINI, Defendant(S). |
| Court | New York Supreme Court |
Defendant HVT, INC. (HVT) moves seeking an Order granting it leave to amend its answer to interpose an affirmative defense. Specifically, HVT seeks to interpose an affirmative defense pursuant to 49 United States Code §30106 (Graves Amendment) thereby barring the instant action. HVT argues that insofar as HVT's liability is solely vicarious and HVT is in the business of leasing motor vehicles, the instant action is barred by the Graves Amendment. HVT also seeks an Order granting renewal of this Court's prior Decision and Order dated February 17, 2009, wherein the Court granted partial summary judgment, on liability, in favor of plaintiff and against all defendants. Upon renewal, HVT seeks to have the Court deny plaintiff's prior motion to the extent that summary judgment was granted against HVT. HVT also seeks summary judgment over and against plaintiff and all defendants on grounds that the Graves Amendment entitles it to summary judgment. Plaintiff opposes the instant application. With regard to HVT's application seeking leave to amend its answer, plaintiff avers that the amendment sought lacks merit, that HVT waived the affirmative defense it seeks to interpose, and that nevertheless, the same is prejudicial. With regard to renewal of this Court's prior Decision and Order plaintiff opposes the instant motion on grounds that HVT has proffered no excuse for failing to seek summary judgment in response to plaintiff's prior motion. With regard to summary judgment in HVT's favor, plaintiff avers that HVT has failed to establish prima facie entitlement to summary judgment.For the reasons that follow hereinafter, HVT's motion is granted in part.
The instant action is for alleged personal injuries. The complaint alleges the following. On January 16, 2008, plaintiff was involved in an accident while operating his vehicle on Boston Road, Bronx, NY. Plaintiff, while stopped at a light at the intersection of Boston Road and Barnes Avenue, was impacted in the rear by a vehicle owned by HVT and operated by defendant ELIZABETH BARGELLINI (Bargellini). Defendants were negligent in the ownership, operation and maintenance of their vehicle, said negligence causing the accident herein and the injuries stemming therefrom.
On February 17, 2009, this Court granted plaintiff's application for partial summary judgment. The Court in its Decision and Order concluded that plaintiff had met his burden and that defendants had failed to raise any triable issues of fact.
In support of the within motion, HVT submits several documents. With the exception of an affidavit, none of the other documents are pertinent to this Court's decision.
HVT submits an affidavit from Diane Adams (Adams), who states, in pertinent part, as follows. Adams is the Manager of the Procedures and Regulations Department for American Honda Finance Corporation, the servicer of HVT's leasing program and agent of HVT for all obligations of HVT as a lessor under its lease contracts. Adams states that pursuant to an agreement dated September 27, 2007, Bargellini leased a 2008 Acura TL with a lease term of 39 months. After the lease was entered into, HVT became the owner of said vehicle. Once the vehicle was leased to Bargellini, HVT's relationship to said vehicle was that of lessor. Bargellini was not an employee or agent of HVT. HVT had no duty to repair or maintain said vehicle and said duty was that of Bargellini. On January 16, 2008, the date of the accident herein, HVT was in the business of leasing motor vehicles to the public.
HVT submits a copy of the lease agreement for the vehicle herein. Said agreement is unaccompanied by any evidentiary foundation and is thus inadmissible.
In opposition to the instant motion, plaintiff submits several documents, none of which are pertinent to the Court's decision.
It is well settled that
An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party fails to offer a valid excuse for not submitting the additional facts upon the original application.
Id. at 568; Healthworld Corporation v. Gottlieb, 12 AD3d 278 (1st Dept 2004); Walmart Stores, Inc. v. United States Fidelity and Guaranty Company, 11 AD3d 300 (1st Dept. 2004); Linden v. Moskowitz, 294 AD2d 114 (1st Dept. 2002); Louis L. Basset v. Bando Sangsa; 103 AD2d 728 (1st Dept. 1984); Holad v. Motor Vehicle Accident Indemnification Corp., 53 Misc 2d 952 (Supreme Court, Kings County 1967); American Trading Company, Inc., v. Leonard Fish, 87 Misc 2d 193 (Supreme Court, New York County 1975); Kadish v. Gilbert M. Columbo, 121 AD2d 722 (2nd Dept. 1986). Renewal is a remedy to be used sparingly and granted only when there exists a valid excuse for failing to submit the newly proffered facts on the original application. Beiny v. Wynyard, 132 AD2d 190 (1st Dept. 1987). It is well settled that a motion to renew seeking consideration of previously available but never submitted evidence, absence an excuse for the failure to previously submit evidence should be denied. Burgos v. City of New York, 294 AD2d 177 (1st Dept. 2002); Chelsea Piers Management v. Forest Electric Corporation, 281 AD2d 252 (1st Dept. 2001).
Nevertheless, the courts have carved an exception to the general rule. Motions to renew can now be granted even when all requirements for renewal are not met. Bank One v. Mui, 38 AD3d 809 (2nd Dept. 2007); Strong Brookhaven Memorial Hospital Medical Center, 240 AD2d 726 (2nd Dept. 1997). As such, motions to renew can be granted even when the newly offered evidence was in fact known and available to the movant but never provided to the Court. Id.; Tishman Construction Corporation of New York v. City of New York, 280 AD2d 374 (1st Dept. 2001); Trinidad v. Lantigua, 2 AD3d 163 (1st Dept. 2003);; Mejia v. Nanni, 307 AD2d 870 (1st Dept. 2003); U.S. Reinsurance Corporation v. Humphreys, 205 AD2d 187 (1st Dept. 1994); J.D. Structures, Inc. v. Waldbum, 282 AD2d 434 (2nd Dept. 2001); Sorto v. South Nasaau Community Hospital, 273 AD2d 373 (2nd Dept. 2000); Cronwall Equities v. International Links Development Corp., 255 AD2d 354 (2nd Dept. 1998); Goyzueta v. Urban Health Plan, Inc., 256 AD2d 307 (2nd Dept. 1998); Liberty Mutual Insurance Company v. Allstate Insurance Company, 237 AD2d 260 (2nd Dept. 1997). It is well settled that renewal with new evidence previously known and available to movant is warranted if the interest of justice and substantial substantive fairness so dictate. Bank One, supra; Trinidad, supra; Mejia, supra; Metcalfe v. City of New York, 223 AD2d 410 (1st Dept. 1996); Scott v. Brickhouse, 251 AD2d 397 (2nd Dept. 1998); Strong, supra; Goyzueta, supra. Thus, under this new rubric, a motion to renew can be granted, in the exercise of the court's discretion, even when the new evidence proffered was readily available to the moving party, such that all requirements necessary for renewal have not been met, including the failure to proffer an excuse for failing to provide previously available and known evidence with the previous motion, Trinidad, supra, or when the excuse is mere inadvertence or ignorance, J.D. Structures, Inc., supra.
In J.D. Structures, Inc., the court granted a renewal of a prior order when renewal was based on previously available evidence, known to the movant and never submitted. J.D. Structures, Inc., supra. The court had initially denied plaintiff's motion because plaintiff had failed to include evidence relative to the debt owed by plaintiff by the defendant. Id. The motion to renew was accompanied by the amount of the debt and an attorney's affirmation averring that the absence of said evidence on the previous motion was due to plaintiff's belief that the motion would be decided favorably without the same. Id. Thus, the court granted renewal despite plaintiff's failure to submit previously available and known evidence on grounds that an excuse had been proffered and because with the new evidence, plaintiff established entitlement to summary judgment. Id. In Trinidad, the court granted renewal when the same was premised upon the submission of a previously known and available expert affidavit despite the fact that no excuse was proffered for the failure to previously submit the same. Trinidad, supra.
A review of most of these cases, where the newly proffered evidence was readily available on the prior motion evidences that consideration of the new evidence changes and often times requires reversal of the court's prior order. Bank One, supra; Trinidad, supra; Metcalfe, supra; Scott, supra, Strong, supra; Goyzueta, supra. Thus, the interest of justice standard is generally applicable where the newly proffered evidence warrants relief in favor of the moving party, the party who was adversely effected by the prior motion. Id.
A motion based on a change in law is a motion to renew, which can be made at anytime prior to entry of judgment. Glicksman v. Board of Education/Central Board of Comsewogue Union Free School District, 278 AD2d 364 (2nd Dept. 2000).
Some defenses must be raised in an answer by way of an affirmative defense. In particular, CPLR §3018(b) states
Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or...
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