Feaster v. Boulabat

Appellate Division of the Supreme Court of New York

Feaster v. Boulabat

85 A.D.3d 664, 925 N.Y.S.2d 828

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2011

StatusPublished

This text of 85 A.D.3d 664 (Feaster v. Boulabat) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feaster v. Boulabat, 85 A.D.3d 664, 925 N.Y.S.2d 828 (N.Y. Ct. App. 2011).

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Opinion

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about February 25, 2011, which, in a personal injury action arising from a motor vehicle accident, granted the motion of defendants Thami Boulabat and Brighton Car Service, Inc. to renew plaintiffs prior motion for partial summary judgment on the issue of liability, previously granted by order, same court and Justice, entered on or about February 20, 2009, and, upon renewal, vacated the prior order and denied the motion, unanimously reversed, on the law, without costs, the motion to renew denied and the order, entered on or about February 20, 2009, reinstated.

Defendants failed to provide a reasonable explanation as to why they did not mention, in opposition to plaintiffs motion for partial summary judgment, that they were experiencing difficulty in locating Boulabat. Because defendants failed to provide a reasonable excuse for not presenting such facts on the prior motion, the motion to renew should have been denied (see CPLR 2221 [e] [3]; see also American Audio Serv. Bur. Inc. v AT & T Corp., 33 AD3d 473, 476 [2006]).

Defendant’s claim that Boulabat is entitled to a stay pursuant to Military Law § 304 is unavailing in that his tour with the US Merchant Marine does not qualify as active military service under Military Law § 1, and he has not demonstrated that his being away at sea “materially affected” his ability to defend for two years this action as section 304 requires. Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

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Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about February 25, 2011, which, in a personal injury action arising from a motor vehicle accident, granted the motion of defendants Thami Boulabat and Brighton Car Service, Inc. to renew plaintiffs prior motion for partial summary judgment on the issue of liability, previously granted by order, same court and Justice, entered on or about February 20, 2009, and, upon renewal, vacated the prior order and denied the motion, unanimously reversed, on the law, without costs, the motion to renew denied and the order, entered on or about February 20, 2009, reinstated.

Defendants failed to provide a reasonable explanation as to why they did not mention, in opposition to plaintiffs motion for partial summary judgment, that they were experiencing difficulty in locating Boulabat. Because defendants failed to provide a reasonable excuse for not presenting such facts on the prior motion, the motion to renew should have been denied (see CPLR 2221 [e] [3]; see also American Audio Serv. Bur. Inc. v AT & T Corp., 33 AD3d 473, 476 [2006]).

Defendant’s claim that Boulabat is entitled to a stay pursuant to Military Law § 304 is unavailing in that his tour with the US Merchant Marine does not qualify as active military service under Military Law § 1, and he has not demonstrated that his being away at sea “materially affected” his ability to defend for two years this action as section 304 requires. Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

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Bluebook (online)

85 A.D.3d 664, 925 N.Y.S.2d 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feaster-v-boulabat-nyappdiv-2011.

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