The exclusion of coverage under certain conditions for a relative residing with an insured when using a nonowned automobile "was designed to protect the company from being subjected `to greatly added risk without the payment of additional premiums'" ( Sperling v Great Am. Indem. Co., 7 NY2d 442, 448, quoting Vern v Merchants Mut. Cas. Co., 21 Misc 2d 51, 52). The purpose of a provision for a nonowned vehicle not for the regular use of an insured is to provide protection to the insured for the occasional or infrequent use of a vehicle not owned by him or her and is not intended as a substitute for insurance on vehicles furnished for the insured's regular use ( see Liberty Mut. Ins. Co. v Sentry Ins., 130 AD2d 629, 630; see Liberty Mut. Ins. Co. v Allstate Ins. Co., 237 AD2d 260; Egle v United Servs. Auto. Assn., 158 AD2d 661; Federal Ins. Co. v Allstate Ins. Co., Ill AD2d 146 [1985]; but see New York Cent. Mut. Fire Ins. Co. v Jennings, 195 AD2d 541). In determining whether a vehicle has been furnished for regular use, the general availability and frequency of use are criteria employed by the factfinder ( see Liberty Mut. Ins. Co. vAllstate Ins. Co., 237 AD2d 260, 261; Liberty Mut. Ins. Co. v Sentry Ins., 130 AD2d 629, 630; Egle v United Servs. Auto. Assn., 158 AD2d 661, 662-663; McMahon v Boston Old Colony Ins. Co., 67 AD2d 757, 758; compare Hollander v Nationwide Mut. Ins. Co., 60 AD2d 380).

Contrary to the contention of New York Central, the vehicle involved in the accident was not furnished or available for the "regular use" of Hughes, and thus it does not fall within the policy exclusion applicable to such vehicles. In determining whether a vehicle was furnished or available for the regular use of the named insured, "[f]actors to be considered . . . are the availability of the vehicle and frequency of its use by the insured" ( Hartman v. State Farm Ins. Cos., 280 A.D.2d 840, 842; see Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260, 261-262; New York Cent. Mut. Fire Ins. Co. v. Jennings, 195 A.D.2d 541, 542; see also Brown v. Keefe, 255 A.D.2d 971, 972). The applicability of the policy exclusion to a particular case must be determined in light of the "purpose of [the] provision [of coverage] for a nonowned vehicle not [furnished or available] for the regular use of the insured[, which] is to provide protection to the insured for the occasional or infrequent use of [a] vehicle not owned by him or her[,] and [which coverage] is not intended as a substitute for insurance on vehicles furnished for the insured's regular use" ( New York Cent. Mut. Fire Ins. Co., 195 A.D.2d at 542; see Hartman, 280 A.D.2d at 842; Liberty Mut. Ins. Co., 237 A.D.2d at 261-262; Federal Ins. Co. v. Allstate Ins. Co., 111 A.D.2d 146, 147).

See Allstate Indem. Co. v. Nelson, 728 N.Y.S.2d 82, 83 (2001) (“Since the owner's insurance policy did not provide coverage because the vehicle was operated without the owner's consent, a prompt notice of disclaimer was not required.”); Liberty Mut. Ins. Co. v. Allstate Ins. Co., 654 N.Y.S.2d 403, 404-05 (1997) (“Moreover, since Allstate's policy was never intended to provide coverage to the vehicle involved in the underlying accident, coverage cannot be created on account of [Allstate's] late service of a notice of disclaimer”); Zappone v. Home Ins. Co., 432 N.E.2d 783, 786 (1982) (“We conclude, however, that the Legislature did not intend by its use of the words ‘deny coverage' to bring within the policy a liability incurred neither by the person insured nor in the vehicle insured[.]”)

It has been explained that the purpose of such a provision "is to provide protection to the insured for the occasional or infrequent use of [a] vehicle not owned by him or her and is not intended as a substitute for insurance on vehicles furnished for the insured's regular use. . . . Whether a car has been furnished for regular use . . . is determined by the particular facts and circumstances in each case. . . . Factors to be considered, however, include the general availability of the vehicle and the frequency of its use."Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260, 261, 654 N.Y.S.2d 403 (2d Dep't 1997) (quoting New York Cent. Mut. Fire Ins. Co. v. Jennings, 195 A.D.2d 541, 542, 600 N.Y.S.2d 486 (2d Dep't 1993)) (citations omitted). Generally, the burden is on the insured to establish coverage in the first instance.

A motion for leave to renew is generally intended to bring to the court's attention new or additional facts which, because genuinely new, or although in existence at the time the original motion was made, were unknown to the movant and therefore not earlier brought to the court's attention (see Tishman Constr. Corp. of New York v City of New York, 280 AD2d 374, 376 [1st Dept 2001], citing Pahl Equip. Corp. v Kassis, 182 AD2d 22 [1st Dept 1992], lv dismissed in part, denied in part 80 NY2d 1005 [1992]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]; see generally Chiappone v William Penn Life Ins. Co. of New York, 96 AD3d 1627 [4th Dept 2012]). However, the court may also grant renewal, in the interest of justice, based upon facts that were known to the movant at the time the original motion was made (see Tishman Constr. Corp. of New York, 280 AD2d at 376, citing Liberty Mut. Ins. Co. v Allstate Ins. Co., 237 AD2d 260, 262 [2d Dept 1997]; Vayser v Waldbaum, 225 AD2d 760, 760 [2d Dept 1996]). In either case, "[r]enewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application" (Foley, 68 AD2d at 568; see CPLR 2221 [e] [3]; Kirby v Suburban Elec. Engrs. Contrs., Inc., 83 AD3d 1380, 1381 [4th Dept 2011], lv dismissed 17 NY3d 783 [2011]).

However, under the circumstances here, the Supreme Court should have granted that branch of the motion which was for leave to renew. "While it is generally true that a motion to renew must be based on newly-discovered facts, courts have discretion to grant this relief in the interest of justice, although not all the requirements for renewal are met" ( Strong v Brookhaven Mem. Hosp. Med. Ctr., 240 AD2d 726, 726-727; see J.D. Structures v Waldbaum, 282 AD2d 434, 436; Sorto v South Nassau Community Hosp., 273 AD2d 373, 373-374; Goyzueta v Urban Health Plan, 256 AD2d 307; Liberty Mut. Ins. Co. v Allstate Ins. Co., 237 AD2d 260, 262). Under the circumstances of this case, that branch of Morgan Stanley's motion which was for leave to renew should have been granted and upon renewal, that branch of its prior cross motion which was for summary judgment on the affirmative defense of equitable subrogation also should have been granted. The doctrine of equitable subrogation applies "where the funds of a mortgagee are used to satisfy the lien of an existing, known incumbrance when, unbeknown to the mortgagee, another lien on the property exists which is senior to his but junior to the one satisfied with his funds" ( King v Pelkofski, 20 NY2d 326, 333-334 [1967]).

Accordingly, a number of courts have held, under appropriate facts, that vehicles furnished by employers to employees for work purposes have been furnished or made available to employees for their regular use, thereby excluding the vehicles from coverage under the employees' personal automobile insurance policies. See 8A Lee R. Russ Thomas E. Segalla, Couch on Insurance 3d § 121:75 (2005) (compiling cases treating "regular use" in the context of an employee's use of employer's vehicle); Home Ins. Co. v. Kennedy, 152 A.2d 115, 118-19 (Del.Super.Ct. 1959); Dardar v. Prudential Prop. Cas. Ins. Co., 739 So.2d 330, 334 (La.Ct.App.), writ denied, 750 So.2d 195 (La. 1999); Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260, 654 N.Y.S.2d 403, 404 (1997) (mem.). Indeed, as has been observed elsewhere, [i]n employment situations, the family automobile policy is not designed to cover an employer's vehicle regularly used by the employee for employment purposes (the employer should cover these risks), or an employer's vehicle regularly used by the employee for personal purposes (the employee should cover these risks at an additional premium if the employer does not cover them).

ORDERED that one bill of costs is awarded to the defendant. Although a motion for leave to renew is intended to bring to the court's attention new or additional facts which were in existence at the time the original motion was made, but were unknown to the movant, "[t]his requirement * * * is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made" ( Tishman Constr. Corp. of N.Y. v. City of N.Y., 280 A.D.2d 374, 376; see CPLR 2221[e]; Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260, 262). Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was for leave to renew ( see Brady v. Ottaway Newspapers, 63 N.Y.2d 1031; Moore v. Eyzenberg, 290 A.D.2d 542). The defendant proffered an excuse of law office failure that was reasonable under the facts of this case.

A motion for leave to renew is intended to direct the court's attention to new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore, not brought to the court's attention (Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, lv dismissed in part, denied in part 80 N.Y.2d 1005; Foley v. Roche, 68 A.D.2d 558). This requirement, however, is not inflexible and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts known to the movant at the time the original motion was made (Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260;Vayser v. Waldbaum, Inc., 225 A.D.2d 760). Indeed, this Court has held that even if the vigorous requirements for renewal are not met, such relief may still be properly granted so as not to "'defeat substantive fairness'" (Metcalfe v. City of New York, 223 A.D.2d 410, quoting Lambert v. Williams, 218 A.D.2d 618, 621).

A motion for leave to renew is intended to bring to the court's attention new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore, not brought to the court's attention (Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, lv dismissed in part, denied in part 80 N.Y.2d 1005; Foley v. Roche, 68 A.D.2d 558). This requirement, however, is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made (Liberty Mut. Ins. Co. v. Allstate Ins. Co., 237 A.D.2d 260; Vayser v. Waldbaum, 225 A.D.2d 760). Indeed, we have held that even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to "'defeat substantive fairness'" (Metcalfe v. City of New York, 223 A.D.2d 410, quoting Lambert v. Williams, 218 A.D.2d 618, 621).