Opinion
2012-09-25
Christina LAOURDAKIS, et al., Plaintiffs–Appellants, v. Roberto TORRES, Defendant–Respondent, Feliciano Mendez, et al., Defendants.
Koulikourdis and Associates, Bronx (Peter J. Koulikourdis of counsel), for appellants. Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for respondent.
Koulikourdis and Associates, Bronx (Peter J. Koulikourdis of counsel), for appellants. Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for respondent.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 8, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to renew defendant Torres' motion to dismiss the complaint as against him as abandoned, unanimously modified, on the law, to grant plaintiff Christina Laourdakis' motion to renew and, upon renewal, to deny the motion to dismiss her claims, and otherwise affirmed, without costs.
Although plaintiffs' motion to renew was based on information that could have been presented earlier, courts have discretion to consider such evidence in the interest of justice ( see Joseph v. Board of Educ. of the City of N.Y., 91 A.D.3d 528, 529, 938 N.Y.S.2d 3 [1st Dept. 2012];Cruz v. Bronx Lebanon Hosp. Ctr., 73 A.D.3d 597, 598, 905 N.Y.S.2d 135 [1st Dept. 2010] ). Here, the affidavit of merit submitted on renewal, together with counsel's affirmation explaining the delay in seeking a default, warrants a grant of renewal and denial of the motion to dismiss as to Christina ( see Smith v. Arce, 78 A.D.3d 612, 912 N.Y.S.2d 44 [1st Dept. 2010];*704LaValle v. Astoria Constr. & Paving Corp., 266 A.D.2d 28, 697 N.Y.S.2d 605 [1st Dept. 1999] ). The evidence that plaintiffs' attorney had continuing oral and written communications with defendant's insurer concerning this serious injury action, “while not the equivalent of ongoing negotiations, sufficiently indicates that plaintiffs did not intend to abandon the action,” and provided a reasonable excuse under the circumstances ( Hinds v. 2461 Realty Corp., 169 A.D.2d 629, 632, 564 N.Y.S.2d 763 [1st Dept. 1991];see Corbin v. Wood Pro Installers, 184 A.D.2d 234, 586 N.Y.S.2d 746 [1st Dept. 1992] ). Moreover, there has been no showing of prejudice to defendant ( see LaValle, 266 A.D.2d at 28, 697 N.Y.S.2d 605).
However, plaintiffs did not provide an affidavit of merit or other evidence sufficient to warrant reinstatement of plaintiff Margarita's serious injury claims ( see Utak v. Commerce Bank Inc., 88 A.D.3d 522, 522–523, 930 N.Y.S.2d 575 [1st Dept. 2011] ).