Opinion
2018-08460 Index No. 4262/15
12-11-2019
Gurpreet SINGH, Appellant, v. Barbara M. WEISBERG, Respondent.
Sacco & Fillas, LLP, Astoria, N.Y. (Celeste Cohen and Simon B. Landsberg of counsel), for appellant. Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
Sacco & Fillas, LLP, Astoria, N.Y. (Celeste Cohen and Simon B. Landsberg of counsel), for appellant.
Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for respondent.
LEONARD B. AUSTIN, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order entered April 18, 2018, is affirmed, with costs.
The plaintiff, a taxicab driver, transported the defendant to a destination in Manhattan, after which a physical altercation ensued between the parties over payment of the fare. The plaintiff commenced an action to recover damages for personal injuries he allegedly sustained during the altercation. The defendant moved for summary judgment dismissing the complaint. Due to the plaintiff's failure to serve his opposition papers in accordance with the deadline set by the centralized motion part, his opposition papers were rejected as untimely. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint without opposition.
The plaintiff moved to vacate his default in opposing the defendant's motion, alleging law office failure. The Supreme Court denied the motion, concluding, inter alia, that the plaintiff failed to demonstrate a reasonable excuse for his default in opposing the motion. The plaintiff then moved, in effect, for leave to renew his prior motion to vacate his default in opposing the defendant's motion. The court denied the defendant's motion for leave to renew, and the plaintiff appeals.
To prevail on a motion for leave to renew, the motion must be based upon new facts not offered on the prior motion that would change the prior determination, and the moving party must set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2], [3] ; Cullin v. Lynch , 148 A.D.3d 670, 670, 48 N.Y.S.3d 711 ; Cioffi v. S.M. Foods, Inc. , 142 A.D.3d 526, 529, 36 N.Y.S.3d 664 ). "[A] motion for leave to renew ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation’ " ( Fardin v. 61st Woodside Assoc. , 125 A.D.3d 593, 595, 3 N.Y.S.3d 101, quoting Coccia v. Liotti , 70 A.D.3d 747, 753, 896 N.Y.S.2d 90 ).
Here, the Supreme Court providently exercised its discretion in denying the plaintiff's motion, in effect, for leave to renew his prior motion to vacate his default in opposing the defendant's motion for summary judgment (see CPLR 2221[e][2] ; Ghoneim v. Vision Enters. Mgt., LLC , 165 A.D.3d 893, 894, 87 N.Y.S.3d 118 ). Although the affirmations of counsel submitted in support of renewal clarified some of the procedural facts surrounding the plaintiff's default in opposing the defendant's motion for summary judgment, the plaintiff still failed to offer any excuse, let alone a reasonable one, for his failure to serve his opposition papers in accordance with the deadline set by the centralized motion part (see Bank of N.Y. Mellon v. Ruci , 168 A.D.3d 799, 800, 89 N.Y.S.3d 914 ; LaSalle Bank, N.A. v. LoRusso , 155 A.D.3d 706, 707, 64 N.Y.S.3d 102 ). Moreover, the plaintiff failed to provide a reasonable justification for his failure to submit an affidavit of merit in support of his prior motion (see Hernandez v. Nwaishienyi , 148 A.D.3d 684, 687, 48 N.Y.S.3d 467 ).
AUSTIN, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.