Hasmath v. Cameb
| Decision Date | 08 March 2004 |
| Docket Number | 2003-00409. |
| Citation | 5 A.D.3d 438,2004 NY Slip Op 01544,773 N.Y.S.2d 121 |
| Parties | JAMAL HASMATH, Appellant, v. JOSEPH CAMEB, Defendant, and QUEENS DISTRICT ATTORNEY'S OFFICE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal from so much of the order as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law and as a matter of discretion, with costs, that branch of the motion which was for leave to renew is granted, and upon renewal, the motion for leave to serve a late notice of claim is granted.
"It is well settled that a motion for leave to renew must be supported by new or additional facts which, although in existence at the time of a prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court" (Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392 [1997]; see CPLR 2221; Foley v Roche, 68 AD2d 558, 568 [1979]). Although a motion for leave to renew generally should be based on newly-discovered evidence, a court has the discretion to grant the motion upon facts known to the movant at the time of the original motion where the movant offers a reasonable justification for the failure to submit the additional facts on the original motion (see Bloom v Primus Automotive Fin. Servs., 292 AD2d 410 [2002]). Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying that branch of the motion which was for leave to renew, as the plaintiff provided a reasonable excuse for his failure to offer the evidence on the original motion.
Upon renewal, the plaintiff's motion for leave to serve a late notice of claim should have been granted. The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court (see General Municipal Law § 50-e [5]; Matter of Valestil v City of New York, 295 AD2d 619 [2002]). In making its determination, "[t]he key factors...
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...allege, for example, that respondents had notice by way of their employees having prepared an incident report, (see, e.g., Hasmath v. Cameb, 5 A.D.3d 438[2d Dept. 2004]; see also, Matter of Continental Ins. Co. v. City of Rye, 257 A.D.2d 573 [2d Dept. Although it has been held that the muni......
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Nationwide Affinity Ins. Co. of Am. v. City of N.Y., Index Number: 5807/13
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...to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court (see Hasmath v. Cameb, 5 A.D.3d 438, 439, 773 N.Y.S.2d 121 ). Here, in support of his motion, the plaintiff failed to proffer a reasonable excuse for his failure to serve a timely notice of ......