Robinson v. Consolidated Rail Corp.

8 A.D.3d 1080, 778 N.Y.S.2d 387, 2004 N.Y. App. Div. LEXIS 8121

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered July 30, 2003. The order granted plaintiffs motion for leave to renew and, upon renewal, denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and plaintiffs motion is denied.

Memorandum: Supreme Court erred in granting plaintiffs motion seeking leave to renew with respect to defendant’s motion for summary judgment dismissing the complaint and, upon renewal, denying defendant’s motion. Although a court has discretion to “grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made” (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [2001]), it may not exercise that discretion unless the movant establishes a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]; see Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]). Here, plaintiff failed to provide a reasonable justification for her failure to produce the additional proof on the prior motion (see Giardina v Parkview Court Homeowners’ Assn., 284 AD2d 953 [2001], lv dismissed 97 NY2d 700 [2002]; see also Greene, 283 AD2d at 459). Present—Wisner, J.P., Hurlbutt, Gorski, Martoche and Hayes, JJ.