Priant v. N.Y.C. Transit Auth.
| Decision Date | 03 August 2016 |
| Citation | 36 N.Y.S.3d 201,142 A.D.3d 491,2016 N.Y. Slip Op. 05707 |
| Parties | James PRIANT, appellant, v. NEW YORK CITY TRANSIT AUTHORITY, respondent, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
Friedman Friedman Chiaravalloti & Giannini, New York, NY (A. Joseph Giannini of counsel), for appellant.
Lawrence Heisler, Brooklyn, NY (Jane Shufer of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated September 28, 2015, which denied his motion for leave to renew that branch of his prior motion which was for leave to serve a late notice of claim.
ORDERED that the order is affirmed, with costs.
In this action to recover damages for personal injuries, the plaintiff moved, inter alia, for leave to serve a late notice of claim. In an order dated January 17, 2014, the Supreme Court granted that branch of the plaintiff's motion. The defendant New York City Transit Authority appealed, and by decision and order dated March 11, 2015, this Court reversed so much of the order dated January 17, 2014, as granted that branch of the plaintiff's motion which was for leave to serve a late notice of claim, and denied that branch of the motion (see Priant v. New York City Tr. Auth., 126 A.D.3d 774, 5 N.Y.S.3d 473
). The plaintiff then moved for leave to renew that branch of his prior motion which was for leave to serve a late notice of claim. The Supreme Court denied the plaintiff's motion for leave to renew, and the plaintiff appeals.
112 A.D.3d 881, 882, 977 N.Y.S.2d 405 ; Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840 ). “A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Elder v. Elder, 21 A.D.3d 1055, 1055, 802 N.Y.S.2d 457 ; see
Rose v. Levine, 98 A.D.3d 1015, 1015–1016, 951 N.Y.S.2d 880 ; Matter of
Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146 ).
Here, the plaintiff failed to establish that the new evidence offered in support of his motion for leave to renew could not have been discovered earlier through the exercise of due diligence (see Andrews v. New York City Hous. Auth., 90 A.D.3d 962, 963, 934 N.Y.S.2d 840
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