Opinion
10246 Index 307118/13
10-31-2019
Caroline WADE, Plaintiff–Appellant, v. Anthony GIACOBBE, Defendant–Respondent.
The Ofshtein Law Firm, Brooklyn (Aida Kuperman of counsel), for appellant. Picciano & Scahill, P.C., Bethpage (Gerard Ferrara of counsel), for respondent.
The Ofshtein Law Firm, Brooklyn (Aida Kuperman of counsel), for appellant.
Picciano & Scahill, P.C., Bethpage (Gerard Ferrara of counsel), for respondent.
Friedman, J.P., Kapnick, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about August 14, 2018, which denied plaintiff's motion to renew and/or vacate a prior order granting defendant's motion for summary judgment on default, unanimously affirmed, without costs.
In July 2015, plaintiff defaulted in opposing defendant's motion for summary judgment dismissing her complaint on the threshold issue of lack of a serious injury causally related to the motor vehicle accident involving defendant's vehicle ( Insurance Law § 5102[d] ). Defendant's motion was granted on default in October 2015, and plaintiff did not move to vacate the default until September 2016. In November 2016, the court denied that motion due to plaintiff's failure to file proof of personal service in compliance with the order to show cause. In March 2017, plaintiff brought this motion to renew and/or vacate the October 2015 order and also argued that the November 2016 order should be granted upon renewal.
The motion court providently exercised its discretion in declining to grant leave to renew the summary judgment motion and/or the prior motion to vacate because plaintiff raised no new facts that would have changed the outcome of the prior motions, and failed to provide a reasonable excuse for failing to present those facts at the proper time (see CPLR 2221[e] ). Plaintiff's proffered new fact, an affidavit of service of the order to show cause, did not demonstrate personal service in compliance with the court's directive. Nor did her recently acquired affirmed medical report warrant renewal of the motion. Renewal is granted sparingly and is not a second chance freely given to parties who have failed to exercise due diligence in making their first factual presentation (see Henry v. Peguero, 72 A.D.3d 600, 602, 900 N.Y.S.2d 49 [1st Dept. 2010], appeal dismissed 15 N.Y.3d 820, 908 N.Y.S.2d 152, 934 N.E.2d 886 [2010] ; Chelsea Piers Mgt. v. Forest Elec. Corp., 281 A.D.2d 252, 252, 722 N.Y.S.2d 29 [1st Dept. 2001] ).
Alternatively, considering the belated motion to vacate the default on the merits, we find that plaintiff failed to provide a reasonable excuse for defaulting on defendant's motion for summary judgment (see CPLR 5015[a][1] ). Plaintiff's counsel did not adequately explain the inability to timely obtain medical documents in admissible form to oppose the motion, or her failure either to seek an adjournment or to submit opposition explaining the inability to obtain medical evidence in admissible form (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Nor did counsel explain why it took nearly two months to receive the treating doctor's report after it was prepared and another eleven months to obtain an attestation from the doctor.
Counsel's vague and unsubstantiated claim that repeated requests were made for the doctor to provide the report did not amount to a reasonable excuse for the default, which had already occurred (see Fernandez v. Santos, 161 A.D.3d 473, 474, 76 N.Y.S.3d 147 [1st Dept. 2018] ; Galaxy Gen. Contr. Corp. v. 2201 7th Ave. Realty LLC, 95 A.D.3d 789, 790, 945 N.Y.S.2d 298 [1st Dept. 2012] ). While the issue need not be reached due to the absence of an acceptable excuse for the default (see Fernandez v. Santos, 161 A.D.3d at 474, 76 N.Y.S.3d 147 ), plaintiff also failed to demonstrate a meritorious defense to defendant's motion for summary judgment on the threshold serious injury issue. Among other things, the affirmed medical report did not provide proof of contemporaneous treatment of the claimed shoulder injury or of significant or permanent consequential limitations in range of motion as compared to normal (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ; Stephanie N. v. Davis, 126 A.D.3d 502, 502, 5 N.Y.S.3d 412 [1st Dept. 2015] ).
We have considered plaintiff's remaining arguments and find them unavailing.