Lennon v. Budget Truck Rental, LLC

2024 NY Slip Op 33632(U)

• Court: New York Supreme Court, Kings County
• Decided: October 9, 2024
• Docket: Index No. 508157/2022
• Status: Unpublished

Opinion

Lennon v Budget Truck Rental, LLC 2024 NY Slip Op 33632(U) October 9, 2024 Supreme Court, Kings County Docket Number: Index No. 508157/2022 Judge: Joy F. Campanelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 10/10/2024 04:12 PM INDEX NO. 508157/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: IAS PART 6 -------------------------------------------------------------X MICHAEL LENNON,

Plaintiff, Index No.: 508157/2022

-against-

BUDGET TRUCK RENTAL, LLC, and “JOHN DOE”, First and Last name being fictitious and DECISION AND ORDER unknown, Hon. Joy F. Campanelli, J.S.C.

Defendants. -------------------------------------------------------------X

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 46-54 Opposing Affidavits (Affirmations) 55-56 Affidavits/ Affirmations in Reply 58 Other Papers: Affidavits/Affirmations in Support

Plaintiff MICHAEL LENNON moves by Notice of Motion seq. no. 003, pursuant to

CPLR § 2221, for leave to renew and reargue Defendant’s motion for summary judgment

seq. no. 001, which was granted by this Court after oral arguments on February 7, 2024.

A motion for leave to renew must either be “based upon new facts not offered on the

prior motion” that would change the prior decision or must “demonstrate that there has been

a change in the law that would change the prior determination[.]” The movant must also

provide reasonable justification for the failure to present such new facts or law on the prior

motion. N.Y. C.P.L.R. 2221(e) (McKinney); see Elder v. Elder, 21 A.D.3d 1055, 802

N.Y.S.2d 457; Matter of Progressive Northeastern Ins. Co. v. Frenkel, 8 A.D.3d 390, 391,

777 N.Y.S.2d 652; Matter of Brooklyn Welding Corp. v. Chin, 236 A.D.2d 392, 653 N.Y.S.2d

1 of 4 [* 1] FILED: KINGS COUNTY CLERK 10/10/2024 04:12 PM INDEX NO. 508157/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/10/2024

631); Korman v. Bellmore Pub. Schools, 879 N.Y.S.2d 194, 196–97 (N.Y. App. Div. 2d Dept.

2009).

At oral argument on September 25, 2024, Plaintiff’s counsel admitted, that no new

facts are being offered that would change the prior determination. As such, the portion of

Plaintiff’s motion seeking leave to renew motion seq. no. 001 is denied.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly

overlooked or misapprehended by the court in determining the prior motion but shall not

include any matters of fact not offered on the prior motion[.]” N.Y. C.P.L.R. 2221(d)(2)

(McKinney). Motions for leave to reargue are within the discretion of the court and are “not

designed to provide an unsuccessful party with successive opportunities to reargue issues

previously decided, or to present arguments different from those originally presented[.]”

McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75; see Jaspar Holdings, LLC v.

Gotham Trading Partners # 1, LLC, 186 A.D.3d 582, 584, 130 N.Y.S.3d 19; Degraw Constr.

Group, Inc. v. McGowan Bldrs., Inc., 178 A.D.3d at 773, 111 N.Y.S.3d 898; Woody's Lbr.

Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 593, 817 N.Y.S.2d 391); Emigrant Bank v.

Kaufman, 203 N.Y.S.3d 363, 365–66 (N.Y. App. Div. 2d Dept. 2024).

In granting Defendant’s motion for summary judgment seq. no. 001, Plaintiff argues

that the Court misapprehended Second Department case law analogous to the facts of this

matter which was initially offered by Plaintiff in opposition to the summary judgment

motion. This court agrees as such, the portion of Plaintiff’s motion seq. no. 003 seeking leave

to reargue Defendant’s motion for summary judgment seq. no. 001 is granted. Upon

reargument, Defendant failed to establish prima facie entitlement to judgment as a matter of

law and therefore, Defendant’s motion seq. no. 001 for summary judgment is denied.

2 of 4 [* 2] FILED: KINGS COUNTY CLERK 10/10/2024 04:12 PM INDEX NO. 508157/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/10/2024

To succeed on a motion for summary judgment and dismiss a complaint, defendants

cannot simply point to gaps in the plaintiff’s case to satisfy their burden. They must

affirmatively demonstrate the merits of their claim or defense by submitting evidentiary

proof in admissible form. See Vanderhurst v. Nobile, 13 N.Y.S.3d 231, 232 (N.Y. App. Div.

2d Dept. 2015);

Collado v. Jiacono, 6 N.Y.S.3d 116, 118 (N.Y. App. Div. 2d Dept. 2015); Feldberg v.

Skorupa, 57 N.Y.S.3d 212, 213 (N.Y. App. Div. 2d Dept. 2017).

In support of their summary judgment motion, Defendant BUDGET TRUCK

RENTAL, LLC argued that Plaintiff could not establish a prima facie case of liability

because they could not prove Defendant owned, or was operating, the offending vehicle at

the time of the motor vehicle accident at the center of this case. In making this argument,

Defendant relied on deposition transcripts to highlight alleged deficiencies in Plaintiff’s case.

This is insufficient evidence to shift the burden from the Defendant on a motion for summary

judgment. Defendant did not affirmatively offer any evidence in admissible form to

demonstrate the absence of material issues of fact, and entitlement to judgment as a matter of

law based on those facts. Therefore, Defendant’s motion for summary judgment seq. no. 001

is denied.

Accordingly, it is hereby

ORDERED that the portion of Plaintiff MICHAEL LENNON’s motion seq. no. 003

for leave to renew Defendant’s motion for summary judgment seq. no. 001, is DENIED; and

it is further,

3 of 4 [* 3] FILED: KINGS COUNTY CLERK 10/10/2024 04:12 PM INDEX NO. 508157/2022 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 10/10/2024

ORDERED that the portion of Plaintiff MICHAEL LENNON’s motion seq. no. 003

for leave to reargue Defendant’s motion for summary judgment seq. no. 001 is GRANTED;

and it is further,

ORDERED that upon reargument, Defendant BUDGET TRUCK RENTAL, LLC’s

motion seq. no. 001 for summary judgement is DENIED

This constitutes the decision and order of the Court.

DATED: October 9, 2024 Brooklyn, New York

____________________________ Hon. Joy F. Campanelli, J.S.C.

4 of 4 [* 4]