Galisia v. Espinal

2017 NY Slip Op 2934, 149 A.D.3d 544, 50 N.Y.S.3d 266

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2017
• Docket: 3748 309859/12
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 4, 2016, which, to the extent appealable, denied plaintiffs motion to renew defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly denied plaintiff’s motion to renew, which was based on uncertified emergency and hospital records indicating that plaintiff had suffered a fracture. Plaintiff failed to offer a reasonable justification for not having submitted the records on the prior motion (see CPLR 2221 [e] [3]). Although plaintiff argued that he had mistakenly testified that he had been transported to Lincoln Hospital, the bill of particulars clearly stated the correct hospital. “Renewal is not available as a ‘second chance’ for parties who have not exercised due diligence in making their first factual presentation” (Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252, 252 [1st Dept 2001]).

Concur — Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.