Opinion
01-26-2017
Robert JONES, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants, New York City Health and Hospitals Corporation, Defendant–Respondent.
Held & Hines, LLP, New York (James K. Hargrove of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
Held & Hines, LLP, New York (James K. Hargrove of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondent.
FRIEDMAN, J.P., RICHTER, SAXE, MOSKOWITZ, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered November 12, 2015, which denied plaintiff's motion to, among other things, renew and reargue his prior application for leave to serve a late notice of claim upon defendant New York City Health and Hospitals Corporation (HHC), unanimously affirmed, without costs. Appeal from order, same court and Justice, entered April 22, 2015, which vacated an order, same court and Justice, entered on or about October 17, 2014, which had granted, upon HHC's default, plaintiff's application for leave to serve a late notice of claim upon HHC, unanimously dismissed, without costs, as abandoned. Appeal from order, same court and Justice, entered June 1, 2015, which clarified the order entered April 22, 2015 to the extent of granting HHC's motion to vacate the order entered on or about October 17, 2014 and denying plaintiff's application for leave to serve a late notice of claim upon HHC, unanimously dismissed, without costs, as taken from a nonappealable order. Although the motion court denied the motion to reargue as untimely, that part of the order is appealable because the court also addressed the merits of the motion and therefore effectively granted reargument (see Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986] ; see also Pezhman v. Chanel, Inc., 126 A.D.3d 497, 2 N.Y.S.3d 792 [1st Dept.2015] ). Upon reargument, the motion court properly adhered to its original determination denying plaintiff's application for leave to serve a late notice of claim, because plaintiff failed to establish that the court had overlooked or misapprehended any issue of law or fact in making its original determination ( CPLR 2221[d][2] ; see Pezhman, 126 A.D.3d at 497, 2 N.Y.S.3d 792 ). In support of his motion to reargue, plaintiff improperly submitted his affidavit, an expert's affidavit and a caregiver's affidavit, because those documents were not offered in support of its original application or in opposition to HHC's motion to vacate (see CPLR 2221[d] [2] ; Mazinov v. Rella, 79 A.D.3d 979, 980, 912 N.Y.S.2d 896 [2d Dept.2010] ).
The motion court properly denied the motion for leave to renew, because plaintiff provided no explanation as to why he did not submit the aforementioned affidavits on the prior motions ( CPLR 2221[e][3] ; 300 W. Realty Co. v. City of New York, 99 A.D.2d 708, 709, 471 N.Y.S.2d 858 [1st Dept.1984], appeal dismissed 63 N.Y.2d 952, ––– N.Y.S.2d ––––, – ––N.E.2d –––– [1984] ). Even were renewal granted in the interest of justice ( Mejia v. Nanni, 307 A.D.2d 870, 871, 763 N.Y.S.2d 611 [1st Dept.2003] ), the motion court properly determined that there was no basis for changing its original determination denying plaintiff leave to serve a late notice of claim. Among other things, plaintiff failed to establish that HHC had obtained actual notice of the essential facts of plaintiff's medical malpractice claim within 90 days after the claim arose or a reasonable time thereafter (see General Municipal Law § 50–e[5] ; Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 N.Y.3d 672, 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 [2016] ; Matter of Kelley v. New York City Health & Hosps. Corp., 76 A.D.3d 824, 827–828, 907 N.Y.S.2d 11 [1st Dept.2010] ).
Plaintiff has abandoned his appeal from the order entered April 22, 2015, because he has not raised any argument regarding the propriety of that order (see 400 E. 77th Owners, Inc. v. New York Eng'g Assn., P.C., 122 A.D.3d 474, 475, 997 N.Y.S.2d 34 [1st Dept.2014] ).
The order entered June 1, 2015 is not appealable as of right, because it did not determine a motion made upon notice (see CPLR 5701[a][2], [3] ), and we decline to deem the notice of appeal from that order a motion for leave to appeal (see Gross v. 141–30 84th Rd. Apt. Owners Corp., 85 A.D.3d 447, 448, 924 N.Y.S.2d 383 [1st Dept.2011] ).