Derby v. Bitan

• Decision Date: 26 December 2013
• Citation: 112 A.D.3d 881,2013 N.Y. Slip Op. 08589,977 N.Y.S.2d 405
• Parties: Colleen DERBY, appellant, v. Fabian BITAN, etc., respondent.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 881

977 N.Y.S.2d 405

2013 N.Y. Slip Op. 08589

Colleen DERBY, appellant,

v.Fabian BITAN, etc., respondent.

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

Dec. 26, 2013.

RosaLee Charpentier, Kingston, N.Y., for appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliot J. Zucker of counsel), for respondent.

THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, lack of informed consent, and breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated November 28, 2012, which granted the defendant's motion for leave to renew his prior motion for summary judgment dismissing the complaint and, upon renewal, granted the defendant's prior motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

“A motion for leave to renew is addressed to the sound discretion of the court” (Matheus v. Weiss, 20 A.D.3d 454, 454–455, 797 N.Y.S.2d 774; see Mi Ja Lee v. Glicksman, 14 A.D.3d 669, 670, 789 N.Y.S.2d 276). Pursuant to CPLR 2221(e), 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” (CPLR 2221[e][2], [3]; see Estate of Essig v. 5670 58 St. Holding Corp., 66 A.D.3d 822, 822, 887 N.Y.S.2d 244). Furthermore, on a post appeal motion to renew, the movant bears a “heavy burden of showing due diligence in presenting the new evidence to the Supreme Court” in order to imbue the appellate decision with a degree of certainty (Levitt v. County of Suffolk, 166 A.D.2d 421, 423, 560 N.Y.S.2d 487; see Abrams v. Berelson, 94 A.D.3d 782, 787, 942 N.Y.S.2d 132; Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840; Estate of Essig v. 5670 58 St. Holding Corp., 66 A.D.3d at 823, 887 N.Y.S.2d 244; see also Specialized Realty Servs., LLC v. Town of Tuxedo, 106 A.D.3d 987, 987, 966 N.Y.S.2d 148; Sealey v. Westend Gardens Hous. Dev. Fund Co., Inc., 97 A.D.3d 653, 654–655, 949 N.Y.S.2d 89).

Here, the Supreme Court providently exercised its discretion in granting the defendant leave to renew his prior motion for summary judgment dismissing the complaint. The defendant's submissions included new factual material that “would change the prior determination” (CPLR 2221[e][2] ), and the defendant demonstrated a “reasonable justification” for his failure to present such evidence in support of his prior motion (CPLR 2221[e][3] ). Furthermore, the defendant sustained his heavy burden of demonstrating due diligence in presenting the new evidence to the Supreme Court ( compare Abrams v. Berelson, 94 A.D.3d at 787, 942 N.Y.S.2d 132; Levitt v. County of Suffolk, 166 A.D.2d at 422–423, 560 N.Y.S.2d 487).

Upon renewal, the Supreme Court providently exercised its discretion in reaching the merits of the defendant's prior motion for summary judgment despite the fact that it was made one day beyond the statutorily prescribed period for making such motions ( seeCPLR 3212[a] ). The new evidence submitted by the defendant in support of his renewal motion established good cause for the de minimis delay ( see generally DeFilippo v. Miller, 106 A.D.3d 770, 771, 964 N.Y.S.2d 594; Popalardo v. Marino, 83 A.D.3d 1029, 1030, 922 N.Y.S.2d 158; Mayer v. New York City Tr. Auth., 39 A.D.3d 349, 349, 833 N.Y.S.2d 476; Castro v. Homsun Corp., 34 A.D.3d 616, 617, 826 N.Y.S.2d 89; see also Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726–727, 786 N.Y.S.2d 379, 819 N.E.2d 995; Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431).

In reaching the merits of the defendant's prior motion for summary judgment, upon renewal, the Supreme Court properly determined that the defendant established, prima facie, his entitlement to...