Cioffi v. S.M. Foods, Inc.

• Decision Date: 17 June 2015
• Docket Number: 2013-00666, 2013-05069
• Citation: 10 N.Y.S.3d 620,129 A.D.3d 888,2015 N.Y. Slip Op. 05145
• Parties: Frederick M. CIOFFI, et al., respondents, v. S.M. FOODS, INC., et al., appellants (and a third-party action).
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 888

10 N.Y.S.3d 620

2015 N.Y. Slip Op. 05145

Frederick M. CIOFFI, et al., respondents

v.S.M. FOODS, INC., et al., appellants

(and a third-party action).

2013-00666, 2013-05069

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

June 17, 2015.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro and Kimberley A. Carpenter of counsel), for appellants S.M. Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, Daniel E. Burke, and Ryder Truck Rental, Inc.

White, Quinlan & Staley, LLP, Garden City, N.Y., for appellants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay.

Grant & Longworth, LLP, Dobbs Ferry, N.Y. (Jonathan Rice and Marie R. Hodukavich of counsel), for respondents.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, etc., the defendants S.M. Foods, Inc., GFI Boston, LLC, PLM Trailer Leasing, Daniel E. Burke, and Ryder Truck Rental, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated November 20, 2012, as granted that branch of the plaintiffs' motion which was for leave to renew and reargue their opposition to the motion of the defendant Ryder Truck Rental, Inc., pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against it, and, upon renewal and reargument, vacated the determination in an order of the same court dated August 13, 2012, granting the motion of the defendant Ryder Truck Rental, Inc., and thereupon denied the motion, and granted that branch of the plaintiffs' motion which was for leave to serve an amended complaint, and the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay appeal (1), as limited by their brief, from so much of the same order as granted that branch of the plaintiffs' motion which was for leave to serve an amended complaint and denied their cross motion for an order directing that the action be tried without a jury and severing the legal and equitable claims for trial, and (2), as limited by their notice of appeal and brief, from so much of an order of the same court dated January 11, 2013, as granted their motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them only to the extent of dismissing the plaintiffs' claims against them for punitive damages.

ORDERED that the order dated November 20, 2012, is modified, on the law, by deleting the provision thereof granting those branches of the plaintiffs' motion which were for leave to renew their opposition to the motion of the defendant Ryder Truck Rental, Inc., and for leave to serve an amended complaint, and substituting therefor a provision denying those branches of the plaintiffs' motion; as so modified, the order is affirmed; and it is further,

ORDERED that the order dated January 11, 2013, is affirmed insofar as appealed from; and it is further,

ORDERED that the plaintiffs are awarded one bill of costs, payable by the defendants S.M. Foods, Inc., GFI Boston, LLC, Ryder Truck Rental, Inc., PLM Trailer Leasing, and Daniel E. Burke and the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay, appearing separately and filing separate briefs.

On May 22, 2009, the plaintiff Frederick M. Cioffi (hereinafter the injured plaintiff), a police officer, allegedly was injured while he was conducting a traffic stop on foot when he was struck by a tractor trailer operated by the defendant Daniel E. Burke. The tractor trailer was owned by the defendant Ryder Truck Rental, Inc. (hereinafter Ryder). On September 19, 2008, the tractor trailer had been leased pursuant to a rental agreement to the defendant GFI Boston, LLC (hereinafter GFI), Burke's employer. Pursuant to the rental agreement, the tractor trailer was to be returned to Ryder by October 19, 2008.

The injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Ryder, GFI, Burke, and certain of GFI's corporate parents and principals, namely, the defendants Atlanta Foods International, Russell McCall's, Inc., and Doug Jay (hereinafter collectively the Atlanta defendants), to recover damages for personal injuries, etc. Ryder moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against it, on the ground that, under 49 USC § 30106, known as “the Graves Amendment,” it could not be held vicariously liable for the accident.

In an order dated August 13, 2012, the Supreme Court granted Ryder's motion, finding that the plaintiffs had no cause of action against it. The plaintiffs moved for leave to renew and reargue their opposition to the motion and for leave to serve an amended complaint. Ryder, GFI, Burke, S.M. Foods, Inc., and PLM Trailer Leasing (hereinafter collectively the Ryder defendants) opposed the plaintiffs' motion. The Atlanta defendants cross-moved for an order directing that the action be tried without a jury and severing the legal and equitable claims for trial.

In an order dated November 20, 2012, the Supreme Court granted that branch of the plaintiffs' motion which was for leave to renew and reargue and, upon renewal and reargument, vacated the order dated August 13, 2012, and thereupon denied Ryder's motion. The court also granted that branch of the plaintiffs' motion which was for leave to serve an amended complaint. The court denied the Atlanta defendants' cross motion.

Thereafter, the Atlanta defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. In an order dated January 11, 2013, the Supreme Court granted the Atlanta defendants' motion only to the extent of dismissing so much of the amended complaint as sought punitive damages against them.

The Ryder defendants appeal from so much of the order dated November 20, 2012, as granted the plaintiffs' motion. The Atlanta defendants appeal from so much of the same order as granted that branch of the plaintiffs' motion which was for leave to serve an amended complaint and denied that branch of their cross motion which was for an order directing that the action be tried without a jury. The Atlanta defendants also appeal from so much of the order dated January 11, 2013, as granted their motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them only to the extent of dismissing so much of the amended complaint as sought punitive damages against them.

“A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion” (Lindbergh v. SHLO 54, LLC, 128 A.D.3d 642, 644–45, 9 N.Y.S.3d 105 [2d Dept.2015] [internal quotation marks omitted]; see CPLR 2221[e][2], [3] ; Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 585–586, 953 N.Y.S.2d 301 ; Jovanovic v. Jovanovic, 96 A.D.3d 1019, 1020, 947 N.Y.S.2d 554 ; Matter of Nelson v. Allstate Ins. Co., 73 A.D.3d 929, 929, 901 N.Y.S.2d 329 ). The new or additional facts presented “ either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d at 586, 953 N.Y.S.2d 301 ; see Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121 ). “However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented” (Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d at 586, 953 N.Y.S.2d 301 [internal quotation marks omitted] ). Accordingly, “ the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion” (Jovanovic v. Jovanovic, 96 A.D.3d at 1020, 947 N.Y.S.2d 554 ; see Rowe v. NYCPD, 85 A.D.3d at 1003, 926 N.Y.S.2d 121 ). Reasonable justification does not exist where “the ‘new evidence’ consists of documents which the [moving party] knew existed, and were in fact in his own possession at the time the initial motion was made” (Rowe v. NYCPD, 85 A.D.3d at 1003, 926 N.Y.S.2d 121 ; see Jovanovic v. Jovanovic, 96 A.D.3d at 1020, 947 N.Y.S.2d 554 ).

Here, the Supreme Court should have denied that branch of the plaintiffs' motion which was for leave to renew their opposition to Ryder's motion. The record establishes that the materials relied upon by the plaintiffs in support of that branch of their motion which was for leave to renew were either in their possession prior to the date on which they filed their opposition to Ryder's motion or were reasonably available to them. Thus, because the plaintiffs failed to set forth “a reasonable justification for failing to present the new facts on the original motion,” the Supreme Court improvidently exercised its discretion in granting that branch of their motion which was for leave to renew (see Jovanovic v. Jovanovic, 96 A.D.3d at 1020, 947 N.Y.S.2d 554 ; Rowe v. NYCPD, 85 A.D.3d at 1003, 926 N.Y.S.2d 121 ).

However, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' motion which was for leave to reargue. A motion for leave to reargue is similarly directed to the trial court's discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (see CPLR 2221[d] ; Central Mtge. Co. v. McClelland,

119 A.D.3d 885, 886, 991 N.Y.S.2d 87 ). The Graves Amendment provides, generally, that the owner of a leased or rented motor vehicle cannot be held liable for...