Hackney v. Monge

• Decision Date: 27 February 2013
• Citation: 960 N.Y.S.2d 176,103 A.D.3d 844,2013 N.Y. Slip Op. 01233
• Parties: Dana HACKNEY, respondent, v. Victoriano MONGE, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 844

960 N.Y.S.2d 176

2013 N.Y. Slip Op. 01233

Dana HACKNEY, respondent,

v.Victoriano MONGE, appellant.

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

Feb. 27, 2013.

Skenderis & Cornacchia, P.C., Long Island City, N.Y. (Jennifer L. Cook of counsel), for appellant.

Spar & Bernstein, P.C., New York, N.Y. (Jared R. Cooper and Vanessa Chaikin of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered February 8, 2012, as denied that branch of his motion which was for leave to renew his opposition to the plaintiff's motion for summary judgment on the issue of liability, which had been granted in an order of the same court entered August 23, 2011.

ORDERED that the order entered February 8, 2012, is affirmed insofar as appealed from, with costs.

On August 9, 2010, while on West First Street in the City of Mount Vernon, the plaintiff allegedly was stopped in her vehicle waiting to make a left turn onto South Seventh Avenue, when the defendant's vehicle collided with the rear of her vehicle. The plaintiff commenced this action, and subsequently moved for summary judgment on the issue of liability. The Supreme Court granted the motion on the ground that the defendant's affidavit submitted in opposition was without probative value because the second page, presumably containing the defendant's notarized signature, was omitted. The Supreme Court further determined that, in any event, the defendant's affidavit failed to raise a triable issue of fact. The defendant moved, inter alia, for leave to renew his opposition to the plaintiff's motion, submitting the second page of his affidavit with his notarized signature. The Supreme Court denied that branch of the defendant's motion.

Under 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 must “contain reasonable justification for the failure to present such facts on the prior motion.” “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” ( Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 972, 943 N.Y.S.2d 141). The second page of the defendant's affidavit containing his notarized signature constituted a new fact, and the defendant's inadvertent omission in failing to include that page with the papers submitted to the Supreme Court was tantamount to law office failure which, under the circumstances of this case, constitutes a reasonable justification ( see Gordon v. Boyd, 96 A.D.3d 719, 720, 945 N.Y.S.2d 741;Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d at 972, 943 N.Y.S.2d 141;Arkin v. Resnick, 68 A.D.3d 692, 694, 890 N.Y.S.2d 95;Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 391, 850 N.Y.S.2d 629).

Nevertheless, the defendant's affidavit would not change the prior determination. In opposition to the plaintiff's prima facie showing ( see Abbott v. Picture Cars E., Inc., 78 A.D.3d 869, 911 N.Y.S.2d...