Opinion
May 2, 1996
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
The IAS Court did not improvidently exercise its discretion in denying plaintiff's motion to renew, where such motion was based upon the belated and inconclusive affidavit of the process server. Plaintiff has failed to establish that he could not, with the exercise of due diligence, have obtained the affidavit of the process server at an earlier date since he was aware of the allegation of defective service as early as December, 1991. Where a party fails to offer a valid excuse for not submitting the additional facts upon the original application, renewal should be denied ( Foley v. Roche, 68 A.D.2d 558, 568). Even were the belatedly tendered affidavit of the process server to be considered, it is inconclusive and fails to rebut defendant's prior submissions. The building security guard who was served stated he was not authorized to accept process on behalf of any person or corporation.
Concur — Murphy, P.J., Milonas, Williams, Tom and Mazzarelli, JJ.