Opinion
2017–00850 Index No. 22098/14
03-06-2019
Darlene CARONIA, Respondent, v. Matthew PELUSO, et al., Defendants, Faculty–Student Association of the State University of New York at Stony Brook, Inc., Appellant (and a Third-Party Action).
White Fleischner & Fino, LLP, New York, N.Y. (Nancy Davis Lewis and Matthew Toker of counsel), for appellant. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondent.
White Fleischner & Fino, LLP, New York, N.Y. (Nancy Davis Lewis and Matthew Toker of counsel), for appellant.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to recover damages allegedly sustained by her when a vehicle operated by the defendant Matthew Peluso (hereinafter Peluso), an employee of the defendant Faculty–Student Association of the State University of New York at Stony Brook, Inc. (hereinafter the FSA), while driving in reverse, hit the plaintiff's vehicle in the parking lot of the State University of New York at Stony Brook. After Peluso and his wife failed to answer the complaint, the plaintiff moved for leave to enter a default judgment against them and the FSA cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. On February 9, 2016, the Supreme Court, inter alia, denied that branch of the FSA's cross motion which was for summary judgment on the ground that it failed, prima facie, to establish that it was not liable to the plaintiff under the doctrine of respondeat superior.
Thereafter, the FSA issued a subpoena for Peluso's deposition, which took place in June 2016. In August 2016, the FSA moved for leave to renew that branch of its cross motion which was for summary judgment, relying, inter alia, on Peluso's deposition testimony. In an order dated November 18, 2016, the Supreme Court denied the FSA's motion for leave to renew on the ground that it failed to explain why it had not obtained Peluso's testimony prior to making its original cross motion. The FSA appeals from that order.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" ( CPLR 2221[e][2] ) and "shall contain reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221[e][3] ). "The requirement that a motion for renewal be based on new facts is a flexible one" ( Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194 ; see Matter of Serviss v. Incorporated Vil. of Floral Park, 164 A.D.3d 512, 82 N.Y.S.3d 495 ). "The new or additional facts presented ‘either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion’ " ( Matter of Serviss v. Incorporated Vil. of Floral Park, 164 A.D.3d at 513, 82 N.Y.S.3d 495, quoting Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 586, 953 N.Y.S.2d 301 ; see Cioffi v. S.M. Foods, Inc., 142 A.D.3d 526, 529, 36 N.Y.S.3d 664 ). In either circumstance, however, the party seeking renewal must present " ‘a reasonable excuse for the failure to present those facts on the prior motion’ " ( Gonzalez v. Vigo Constr. Corp., 69 A.D.3d at 566, 892 N.Y.S.2d 194, quoting Matter of Surdo v. Levittown Pub. School Dist., 41 A.D.3d 486, 486, 837 N.Y.S.2d 315 ; see Matter of Serviss v. Incorporated Vil. of Floral Park, 164 A.D.3d at 513, 82 N.Y.S.3d 495 ). "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" ( Matter of Serviss v. Incorporated Vil. of Floral Park, 164 A.D.3d at 513, 82 N.Y.S.3d 495 ; see Cioffi v. S.M. Foods, Inc., 142 A.D.3d at 530, 36 N.Y.S.3d 664 ). Where the party seeking renewal fails to provide a reasonable justification for not presenting the new facts on the prior motion, the court lacks discretion to grant renewal (see Matter of Serviss v. Incorporated Vil. of Floral Park, 164 A.D.3d 512, 82 N.Y.S.3d 495 ; Cioffi v. S.M. Foods, Inc., 142 A.D.3d at 530, 36 N.Y.S.3d 664 ).
Here, the FSA failed to provide a reasonable justification for not procuring Peluso's testimony prior to making its original cross motion for summary judgment (see Eskenazi v. Mackoul, 92 A.D.3d 828, 829, 939 N.Y.S.2d 484 ). Accordingly, we agree with the Supreme Court's determination denying the FSA's motion for leave to renew that branch of its cross motion which was for summary judgment dismissing the complaint insofar as asserted against it.
RIVERA, J.P., CHAMBERS, COHEN and BARROS, JJ., concur.