Gonzalez v. Vigo Construction Corporation

• Decision Date: 05 January 2010
• Docket Number: 2008-03721
• Citation: 69 A.D.3d 565,892 N.Y.S.2d 194,2010 NY Slip Op 100
• Parties: MARTIN C. GONZALEZ, by His Guardian ad Litem, GUADALUPE ROMERO REYES, Respondent, v. VIGO CONSTRUCTION CORP., Defendant/Third-Party Plaintiff-Appellant-Respondent, et al., Defendant/Third-Party Plaintiff. EAST WIND CONTRACTING, INC., Third-Party Defendant-Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 565

892 N.Y.S.2d 194

2010 NY Slip Op 100

MARTIN C. GONZALEZ, by His Guardian ad Litem, GUADALUPE ROMERO REYES, Respondent, v. VIGO CONSTRUCTION CORP., Defendant/Third-Party Plaintiff-Appellant-Respondent, et al., Defendant/Third-Party Plaintiff EAST WIND CONTRACTING, INC., Third-Party Defendant-Respondent-Appellant.

2008-03721

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

Decided January 5, 2010.

In an action to recover damages for personal injuries, the defendant Vigo Construction Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), dated February 22, 2008, as granted, in effect, the plaintiff's motion for leave to renew his opposition to that branch of the motion of Vigo Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it, which had been granted in an order of the same court dated July 30, 2007, and, upon renewal, vacated that portion of the order dated July 30, 2007, and denied that branch of the motion of Vigo Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it, and East Wind Contracting, Inc., cross-appeals, as limited by its brief, from the same portion of the order dated February 22, 2008, and so much of that order as, upon renewal, denied with leave to renew, upon submission of the original motion, that branch of the motion of Vigo Construction Corp. which was for summary judgment on its contractual indemnification claim against East Wind Contracting, Inc.

Ordered that order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiff, payable by Vigo Construction Corp. and East Wind Contracting, Inc., and one bill of costs to Vigo Construction Corp., payable by East Wind Contracting, Inc.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Ramirez v Khan, 60 AD3d 748 [2009]; Lardo v Rivlab Transp. Corp., 46 AD3d 759 [2007]). The requirement that a motion for renewal be based on new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion "if the movant offers a reasonable...