Madison v. Tahir
| Decision Date | 20 November 2007 |
| Docket Number | 2006-07461. |
| Citation | 846 N.Y.S.2d 313,45 A.D.3d 744,2007 NY Slip Op 09212 |
| Parties | MICHELLE M. MADISON, Appellant, v. SHANNON TAHIR et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
In an order dated December 16, 2005, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The plaintiff appealed from that order. That appeal, however, was dismissed for failure to prosecute by decision and order on motion of this Court dated September 11, 2006.
The plaintiff also moved for leave to renew her opposition to the defendants' motion. The Supreme Court denied her motion, and we affirm.
In support of her motion for leave to renew, the plaintiff needed to proffer both new facts not presented on the prior motion that would warrant denial of the defendants' motion for summary judgment dismissing the complaint, and a reasonable justification for the failure to have presented such facts on the prior motion (see CPLR 2221 [e] [2], [3]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]). In addition, review in this Court is further limited by the dismissal of the plaintiff's appeal from the order dated December 16, 2005.
As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]).
The plaintiff has not demonstrated any basis for the exercise of such discretion. Given this limited review, we need not consider the issue raised on the instant appeal, as that issue could have been raised on the appeal from the order dated December 16,...
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