Palmer v. Toledo, 1

• Decision Date: 08 November 1999
• Docket Number: No. 2,No. 3,No. 1,1,2,3
• Citation: 698 N.Y.S.2d 272
• Parties: Pamela PALMER, plaintiff, v. D.J. Borden TOLEDO, et al., defendants. (Action) Tina Bryant, plaintiff, v. Budget Rent A Car, et al., defendants. (Action) Deborah Bradley, respondent, v. Theorod Palmer, et al., appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 272

698 N.Y.S.2d 272

Pamela PALMER, plaintiff, v. D.J. Borden TOLEDO, et al., defendants. (Action No. 1)

Tina Bryant, plaintiff, v. Budget Rent A Car, et al., defendants. (Action No. 2)

Deborah Bradley, respondent, v. Theorod Palmer, et al., appellants. (Action No. 3)

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

Nov. 8, 1999.

Newman Fitch Altheim Meyer, P.C., New York, N.Y. (Charles W. Kreines and John F. Raio of counsel), for appellants.

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN and HOWARD MILLER, JJ.

MEMORANDUM BY THE COURT.

In related actions to recover damages for personal injuries, the defendants in Action No. 3 appeal from an order of the Supreme Court, Queens County (Golia, J.), dated October 27, 1998, which granted the plaintiff's motion for leave to renew and, upon renewal, vacated so much of a prior order of the same court, dated May 6, 1998, granting that branch of the defendants' motion which was for summary judgment dismissing the complaint in Action No. 3, and denied that branch of the motion.

ORDERED that the order is reversed, on the law, with costs, the motion for leave to renew is denied, so much of the order dated May 6, 1998, as granted the defendants' motion for summary judgment dismissing the complaint in Action No. 3 is reinstated, and the complaint in Action No. 3 is dismissed.

The instant actions arose from a vehicular accident which occurred on August 16, 1994. The defendants in Action No. 3 moved, inter alia, for summary judgment dismissing the complaint in that action on the ground that the plaintiff in that action had not sustained a serious injury within the meaning of Insurance Law § 5102. By order dated May 6, 1998, the court inter alia, granted the motion.

The plaintiff subsequently moved for leave to renew based on affidavits of her treating and examining physicians, her own affidavit of merit, and a letter, presumably from her employer, stating that she did not work for over three months after the accident. The court granted renewal, vacated its prior order, and denied summary judgment. We reverse and reinstate the prior order.

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 (see, Matter of Brooklyn Welding Corp. v. Chin, 236 A.D.2d 392, 653...