Opinion
Submitted May 3, 2000.
June 19, 2000.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Bucaria, J.), dated August 3, 1999, which granted the motion of the defendants South Nassau Community Hospital, Sabin Manea, and C. Johnson for leave to renew their prior motion to amend their answer to assert the affirmative defense of offset, and upon renewal, granted that motion.
Law Office of Mark R. Bower, P.C., New York, N.Y., for appellants.
Bartlett, McDonough, Bastone Monaghan, LLP, White Plains, N Y (Edward J. Guardaro, Jr., of counsel), for respondents.
Before: GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in granting leave to renew and upon renewal, granting the respondents' motion to amend their answer to assert the affirmative defense of offset of payment by a successive tortfeasor (see, Glaser v. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 647; Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 82-86; Rosado v. Proctor Schwartz, 66 N.Y.2d 21, 24-25). Although in support of their motion for leave to renew, the respondents submitted information which was available to them at the time of the original motion, the requirement that a motion for leave to renew based upon newly-discovered facts is a flexible one, and a court may, in its discretion, grant renewal upon facts known to the moving party at the time of the original motion (see, Lupoli v. Venus Labs., 264 A.D.2d 820; Gadson v. New York City Hous., 263 A.D.2d 464; Pepe v. Tannenbaum, 262 A.D.2d 381; Vayser v. Waldbaum, Inc., 225 A.D.2d 760). Furthermore, because a motion for leave to renew may be made after the time to appeal from the original order has expired (see, Gillman v. O'Connell, 176 A.D.2d 305; Weaver v. State of New York, 112 A.D.2d 416; Patterson v. Town of Hempstead, 104 A.D.2d 975), the respondents' motion was timely.