Jones v. City of Buffalo School District

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

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.