Castor v. Cuevas

• Decision Date: 02 March 2016
• Citation: 137 A.D.3d 734,26 N.Y.S.3d 564
• Parties: Joseph CASTOR, respondent, v. Jamine CUEVAS, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 734

26 N.Y.S.3d 564

Joseph CASTOR, respondent,

v.Jamine CUEVAS, appellant, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

March 2, 2016.

Russo, Apoznanski & Tambasco, Melville, N.Y. (Yamile Al–Sullami of counsel), for appellant.

Law Offices of Jason A. Greenberg, P.C. (Scott R. Cohen, Long Beach, N.Y., of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendant Jamine Cuevas appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated February 13, 2015, which granted that branch of the plaintiff's motion which was for leave to renew the plaintiff's opposition to her motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against her for failure to serve a timely complaint, which had been granted in an order of the same court dated October 3, 2014, and, upon renewal, vacated the order dated October 3, 2014, and thereupon denied her motion pursuant to CPLR 3012(b) to dismiss the action insofar as asserted against her for failure to serve a timely complaint.

ORDERED that the order dated February 13, 2015, is affirmed, with costs.

"Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146 ; see Matter of Osorio v. Motor Veh. Acc. Indem. Corp., 112 A.D.3d 831, 832–833, 977 N.Y.S.2d 663 ; Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 586, 953 N.Y.S.2d 301 ; Dervisevic v. Dervisevic, 89 A.D.3d 785, 786, 932 N.Y.S.2d 347 ; Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194 ). What is considered a "reasonable justification" is within the Supreme Court's discretion (Heaven v. McGowan, 40 A.D.3d 583, 586, 835 N.Y.S.2d 641 ; see Calle v. Zimmerman, 133 A.D.3d 809, 20 N.Y.S.3d 557 ). "Law office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion" (Nwauwa v. Mamos, 53 A.D.3d 646, 649, 862 N.Y.S.2d 110 ; see CPLR 2005 ; Rivera v. Queens Ballpark Co., LLC, 134 A.D.3d 796, 22 N.Y.S.3d 106 ).

Here, contrary to the appellant's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff's motion which was for leave to renew his opposition to her motion, as the excuse of law office failure presented by the plaintiff was reasonable under the circumstances (see Gordon v. Boyd, 96 A.D.3d 719, 720, 945 N.Y.S.2d 741 ; ...