Jones v. City of Buffalo School District

94 A.D.3d 1479, 942 N.Y.S.2d 850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 2012
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered August 11, 2011 in a personal injury action. The order denied the motion of claimant to renew her prior application for leave to serve a late notice of claim.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Claimant appeals from an order denying her motion to renew a prior application for leave to serve a late notice of claim. It is well settled that “[a] motion for leave to renew ‘shall be based upon new facts not offered on the prior [application] that would change the prior determination’ . . . , and ‘shall contain reasonable justification for the failure to present such facts on the prior [application]’ ” (Doe v North Tonawanda Cent. School Dist., 91 AD3d 1283, 1284 [2012]). Here, “[t]he motion to renew was properly denied [inasmuch as claimant] failed to offer a valid excuse for failing to submit the new material on the original [application]” (Linden v Moskowitz, 294 AD2d 114, 116 [2002], lv denied 99 NY2d 505 [2003]; see Schilling v Malark, 13 AD3d 1153, 1154 [2004]). Present— Smith, J.P., Fahey, Peradotto and Lindley, JJ.