Joseph v. Bd. of Educ. of the City of New York

• Decision Date: 19 January 2012
• Citation: 276 Ed. Law Rep. 371,91 A.D.3d 528,2012 N.Y. Slip Op. 00306,938 N.Y.S.2d 3
• Parties: Altona JOSEPH, Plaintiff–Respondent, v. The BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00306

276 Ed. Law Rep. 371

91 A.D.3d 528

938 N.Y.S.2d 3

Altona JOSEPH, Plaintiff–Respondent,

v.The BOARD OF EDUCATION OF the CITY OF NEW YORK, Defendant–Appellant.

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

Jan. 19, 2012.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for appellant.

Greshin, Zeigler & Amicizia, P.C., Smithtown (Vincent M. Amicizia of counsel), for respondent.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, RENWICK, FREEDMAN, JJ.

Order, Supreme Court, Bronx County (Faviola A. Soto, J.), entered October 20, 2010, which, to the extent appealable, denied defendant's motion for leave to renew its motion for, among other things, summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion for renewal granted, and upon renewal, the motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered July 20, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as academic.

Where the parties stipulated to a date for making a summary judgment motion and defendant inadvertently failed to append the “so ordered” version of the stipulation, the motion court improvidently exercised its discretion in finding the motion to be untimely. On the motion to renew, defendant provided a so-ordered version of a stipulation, offered a reasonable excuse for its failure to include the new evidence in the original motion (i.e., law office failure), and demonstrated the merit of its defense ( see CPLR 2221[e] ). In addition, there is no claim of prejudice by plaintiff ( see Scannell v. Mt. Sinai Med. Ctr., 256 A.D.2d 214, 683 N.Y.S.2d 18 [1998] ). That the additional evidence was available at the time of the original motion is not dispositive ( see Cruz v. Bronx Lebanon Hosp. Ctr., 73 A.D.3d 597, 598, 905 N.Y.S.2d 135 [2010]; Scannell, 256 A.D.2d at 214, 683 N.Y.S.2d 18). Here, the additional evidence addressed an issue raised by the court in the original decision ( Scannell, 256 A.D.2d at 214, 683 N.Y.S.2d 18). In such circumstances, it was error for the court not to consider the new evidence ( id.).

Defendant's motion for summary judgment dismissing the complaint should have been granted. Defendant made a prima facie showing that plaintiff's injuries were not caused by defendant's alleged negligence ( see Salvador v. New York Botanical Garden, 71 A.D.3d 422, 423, 895 N.Y.S.2d 410 [2010] ). Indeed, defendant submitted plaintiff's medical records indicating that her injuries existed before the subject incident. That the hospital records are unsworn is of no moment, given that plaintiff relied on the records in opposition to the motion ( cf. Clemmer v. Drah Cab...