Bloom v. Primus Automotive Financial Services, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Bloom v. Primus Automotive Financial Services, Inc., 292 AD2d 410, 738 N.Y.S.2d 861 (N.Y. App. Div. 2002)
• Decision Date: 11 March 2002
• Parties: ELIOT F. BLOOM, Appellant,<BR>v.<BR>PRIMUS AUTOMOTIVE FINANCIAL SERVICES, INC., Doing Business as MAZDA AMERICAN CREDIT, Respondent.

292 A.D.2d 410

738 N.Y.S.2d 861

ELIOT F. BLOOM, Appellant,

v.PRIMUS AUTOMOTIVE FINANCIAL SERVICES, INC., Doing Business as MAZDA AMERICAN CREDIT, Respondent.

Decided March 11, 2002.

Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the branch of the motion which was for leave to renew is granted, the judgment dated July 24, 2000, dismissing the action is vacated, and the motion to restore the action to the trial calendar is granted.

This action was dismissed by judgment dated July 24, 2000, pursuant to 22 NYCRR 202.27, based upon the plaintiff's failure to appear at the call of the calendar on May 22, 2000, and June 29, 2000. A case dismissed pursuant to 22 NYCRR 202.27 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in appearing and that a meritorious cause of action exists (see, Lopez v Imperial Delivery Serv., 282 AD2d 190).

In support of his motion for leave to renew, the plaintiff submitted a statement from his attorney, who had firsthand knowledge of the facts underlying the defaults. While a motion for leave generally should be based on newly-discovered facts, the rule is flexible, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided the movant offers a reasonable justification for the failure to submit the additional facts on the original motion (see, CPLR 2221 [e]; Morrison v Rosenberg, 278 AD2d 392; Karlin v Bridges, 172 AD2d 644). Under the circumstances of this case, the court, in its discretion, should have granted that branch of the plaintiff's motion which was for leave to renew his prior motion (see, Karlin v Bridges, supra).

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