Opinion
0000272/0051.
Decided March 12, 2007.
Nicole Licata-McCord, Esq., Kral, Clerkin, Redmond, Ryan, Perry Girvan, LLP, Attorneys for Third-Party Plaintiff, Mineola, NY.
George W. Wright, Esq., George Wright associates, LLC, Attorneys for Third-Party Defendants, AR Flag Car, Inc., New York, NY.
DECISION and ORDER
Third-Party Defendants, A R Flag Service, Inc. (hereinafter A R) bring this motion pursuant to CPLR 2221 to reargue and renew this Court's Decision Order, dated December 12, 2006. Third-Party Plaintiff, Lone Star Transportation, Inc. (hereinafter Lone Star) opposes the motion.
After fully reviewing the record, this Court denies A R's motion to renew and reargue.
In respect to the motion to renew, the burden is on the moving party. As such, the moving party must establish the reasons the evidence was not initially presented, the material nature of the new facts and that they could not have been discovered at the prior proceeding. Spa Reality Associates v. Springs Associates, 213 AD2d 781 (Third Dept., 1995). In examining the record in this case the A R has not satisfied this burden.
A R contends that this Court erroneously assumed, in granting Lone Star's motion to compel discovery of the Progressive Insurance Policy, that the policy was available to A R or that Progressive was representing or indemnifying A R in this action. This Court made no such assumptions regarding Progressive's role in this action. Progressive's non-defense is also wholly irrelevant. Further, A R did claim, in the original motion, that it was not in possession of the insurance policy and this Court did not credit that claim, but instead determined that A R can be compelled to produce an insurance contract to which it is a party.
In respect to A R's motion to reargue, it must demonstrate to the court that significant facts were overlooked or there was a misapplication of the law in the original decision. See also Spa Reality Associates v. Springs Associates, 213 AD2d 781 (Third Dept., 1995). A R has failed to convince this court of any such errors. A R contends that this Court mistakenly granted Lone Star's motion to compel discovery pursuant to CPLR § 3101(f) because this Court overlooked the applicable legal standard governing a party's duty to disclose and produce documents that are not in its possession or control. CPLR § 3101(f) requires production of a certified or true copy of insurance policies. Plaintiffs, or in this case Third-Party Plaintiffs, are entitled to such information (Bolton v. Weil, Gotshal Manges, LLP, 14 Misc 3d 1220 (A), 2005 WL 5118189). Although, it may be true that A R has failed to preserve and maintain a copy of its liability policy, this cannot be said to be reasonable. A R is certainly in "control" of its own liability policy.
Accordingly, this Court denies A R's motion to renew and reargue.
All papers, including this Decision and Order, are being returned to the attorney for the Third-Party Plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.
PAPERS CONSIDERED:
1. Third-Party Defendant's Notice of Motion, dated February 14, 2007 with Attached Exhibit A.
2. Third-Party Plaintiff's Opposition, dated February 23, 2007.