Garland v. RLI Ins. Co.

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1576,914 N.Y.S.2d 509
• Parties: Arlene S. GARLAND, as Executrix of the Estates of Richard T. Shanor and Genelle M. Shanor, Deceased, Plaintiff-Appellant-Respondent, v. RLI INSURANCE COMPANY, Defendant-Respondent-Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 509
79 A.D.3d 1576

Arlene S. GARLAND, as Executrix of the Estates of Richard T. Shanor and Genelle M. Shanor, Deceased, Plaintiff-Appellant-Respondent,
v.
RLI INSURANCE COMPANY, Defendant-Respondent-Appellant, et al., Defendant.

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

Dec. 30, 2010.

914 N.Y.S.2d 510

Brown Chiari LLP, Lancaster (Michael R. Drumm of Counsel), for Plaintiff-Appellant-Respondent.

Hurwitz & Fine, P.C., Buffalo (Dan D. Kohane of Counsel), for Defendant-Respondent-Appellant.

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND PINE, JJ.

MEMORANDUM:

79 A.D.3d 1576

Supreme Court erred in granting the motion of plaintiff seeking leave to "renew and reargue" her motion for, inter alia, summary judgment on the complaint and to reargue her opposition to the cross motion of RLI Insurance Company (defendant) for summary judgment dismissing the complaint against it. With respect to that part of the motion seeking leave to renew, it "must be based upon new facts that were unavailable at the time of the original motion" ( Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482, 770 N.Y.S.2d 516; see Foxworth v. Jenkins, 60 A.D.3d 1306, 875 N.Y.S.2d 366). "Although a court has discretion to 'grant renewal, in the interest of justice, upon facts [that] were known to the movant at the time the original motion was made' ..., it may not exercise that discretion unless

79 A.D.3d 1577

the movant establishes a 'reasonable justification for the failure to present such facts on the prior motion' " ( Robinson v. Consolidated Rail Corp., 8 A.D.3d 1080, 778 N.Y.S.2d 387; see Foxworth, 60 A.D.3d 1306, 875 N.Y.S.2d 366). Here, the allegedly "new" evidence submitted by plaintiff consists of an affidavit of her attorney detailing his efforts to ascertain the insurance coverage in question from the time that he was retained until plaintiff notified defendant of the accident, approximately 20 months later. It is undisputed that those facts were known to plaintiff at the time of her prior motion, and the only excuse provided by plaintiff for failing to submit the affidavit of her attorney in support of that motion was her mistaken belief that such facts were not relevant to the issue whether her notice to defendant was timely. We conclude that, under the circumstances of this case, the inability of plaintiff to identify the applicable legal standard does not constitute a reasonable justification for her failure to submit the affidavit in support of the prior motion ( see generally Valenti v. Exxon Mobil Corp., 50 A.D.3d 1382, 1383, 857 N.Y.S.2d 745; Zarecki & Assoc., LLC v. Ross, 50 A.D.3d 679, 854 N.Y.S.2d 527; Reshevsky v. United Water N.Y., Inc., 46 A.D.3d 532, 846 N.Y.S.2d 616...