Doe v. North Tonawanda Central School District

91 A.D.3d 1283, 937 N.Y.2d 647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2012
• Status: Published

Opinion

Memorandum: On a prior appeal, we held that Supreme Court did not abuse its discretion in granting claimant’s application for leave to serve a late notice of claim based on allegations that one of respondent’s teachers had sexually abused her when she was a student at respondent’s elementary school (Doe v North Tonawanda Cent. School Dist., 88 AD3d 1289 [2011]). Respondent now appeals from an order denying its motion for leave to renew claimant’s application for leave to serve a late notice of claim. The court properly denied the motion. A motion for leave to renew “shall be based upon new facts not offered on the prior [application] that would change the prior determination” (CPLR 2221 [e] [2]), and “shall contain reasonable justification for the failure to present such facts on the prior [application]” (CPLR 2221 [e] [3]). Although we agree with respondent that certain information obtained during claimant’s examination pursuant to General Municipal Law § 50-h constitutes new evidence that respondent could not have submitted in opposition to the prior application, we conclude that the new evidence would not have changed the prior determination (see Davidoff v East 13th St. Tifereth Place, LLC, 84 AD3d 1302, 1303 [2011]; Garcea v Battista, 53 AD3d 1068, 1070 [2008]; Webb v Torrington Indus., Inc., 28 AD3d 1216, 1217 [2006]). Present— Scudder, PJ., Smith, Centra, Lindley and Gorski, JJ.