Opinion
CA 03-01884.
Decided June 14, 2004.
Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered July 30, 2003. The order granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment dismissing the complaint.
ANSPACH, SERRAINO, MEEKS NUNN, L.L.P., BUFFALO (J. CHRISTINE CHIRBOGA OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHARLES L. DAVIS, BUFFALO, FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and plaintiff's motion is denied.
Memorandum: Supreme Court erred in granting plaintiff's motion seeking leave to renew with respect to defendant's motion for summary judgment dismissing the complaint and, upon renewal, denying defendant's motion. Although a court has discretion to "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 New York, 280 A.D.2d 374, 376), it may not exercise that discretion unless the movant establishes a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Greene v. New York City Hous. Auth., 283 A.D.2d 458, 459). Here, plaintiff failed to provide a reasonable justification for her failure to produce the additional proof on the prior motion ( see Giardina v. Parkview Court Homeowners' Assn., 284 A.D.2d 953, lv dismissed 97 N.Y.2d 700; see also Greene, 283 A.D.2d at 459).