Lee v. Ogden Allied Maintenance Corp.

Appellate Division of the Supreme Court of New York

Lee v. Ogden Allied Maintenance Corp.

226 A.D.2d 226, 640 N.Y.S.2d 560, 1996 N.Y. App. Div. LEXIS 3942

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

DecidedApril 18, 1996

StatusPublished

Cited by7 cases

This text of 226 A.D.2d 226 (Lee v. Ogden Allied Maintenance Corp.) 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

Lee v. Ogden Allied Maintenance Corp., 226 A.D.2d 226, 640 N.Y.S.2d 560, 1996 N.Y. App. Div. LEXIS 3942 (N.Y. Ct. App. 1996).

Pincite

Opinion

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered [227]*227March 31, 1995, which granted plaintiffs’ motion to renew a prior order granting defendants summary judgment dismissing the complaint for failure to make a prima facie showing of serious injury within the meaning of Insurance Law § 5102 (d), and, upon renewal, denied defendants summary judgment and granted plaintiffs leave to serve a supplemental bill of particulars, unanimously reversed, on the law, without costs, the motion to renew and for leave to serve a supplemental bill of particulars denied, and the court’s original order, granting summary dismissal of the complaint, reinstated.

The IAS Court improperly granted plaintiffs’ motion to renew. A motion to renew is properly granted where new information arises which existed at the time the prior motion was made and is relevant to the moving party’s claim, but which was unavailable or unknown to that party at the time of the original motion (Azzopardi v American Blower Corp., 192 AD2d 453, 453-454; Foley v Roche, 68 AD2d 558, 568). Furthermore, "Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application.” (Supra, at 568.) In the instant case, Dr. Kim alleged that he did not have the actual magnetic resonance imaging (MRI) report at the time he made his original affidavit. However, inasmuch as the MRI report was dated June 13, 1994 and Dr. Kim’s original affidavit, dated June 28, 1994, indicated that he had had access to the report, plaintiffs fail to allege any excuse, reasonable or otherwise, for failure to submit the report with their submissions on the original motion.

In view of our disposition of the motion to renew, the motion for leave to serve a supplemental bill of particulars is denied as academic. We have considered the remainder of plaintiffs’ contentions and find them to be without merit. Concur—Sullivan, J. P., Wallach, Ross and Williams, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered [227]*227March 31, 1995, which granted plaintiffs’ motion to renew a prior order granting defendants summary judgment dismissing the complaint for failure to make a prima facie showing of serious injury within the meaning of Insurance Law § 5102 (d), and, upon renewal, denied defendants summary judgment and granted plaintiffs leave to serve a supplemental bill of particulars, unanimously reversed, on the law, without costs, the motion to renew and for leave to serve a supplemental bill of particulars denied, and the court’s original order, granting summary dismissal of the complaint, reinstated.

The IAS Court improperly granted plaintiffs’ motion to renew. A motion to renew is properly granted where new information arises which existed at the time the prior motion was made and is relevant to the moving party’s claim, but which was unavailable or unknown to that party at the time of the original motion (Azzopardi v American Blower Corp., 192 AD2d 453, 453-454; Foley v Roche, 68 AD2d 558, 568). Furthermore, "Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application.” (Supra, at 568.) In the instant case, Dr. Kim alleged that he did not have the actual magnetic resonance imaging (MRI) report at the time he made his original affidavit. However, inasmuch as the MRI report was dated June 13, 1994 and Dr. Kim’s original affidavit, dated June 28, 1994, indicated that he had had access to the report, plaintiffs fail to allege any excuse, reasonable or otherwise, for failure to submit the report with their submissions on the original motion.

In view of our disposition of the motion to renew, the motion for leave to serve a supplemental bill of particulars is denied as academic. We have considered the remainder of plaintiffs’ contentions and find them to be without merit. Concur—Sullivan, J. P., Wallach, Ross and Williams, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

226 A.D.2d 226, 640 N.Y.S.2d 560, 1996 N.Y. App. Div. LEXIS 3942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-ogden-allied-maintenance-corp-nyappdiv-1996.

Opinion

Related

Cite This Page — Counsel Stack