November 18, 2022

Tyorkin v New Jersey Mfrs. Ins. Group (2022 NY Slip Op 51234(U))

https://www.beynensonlaw.com/case-law/tyorkin-v-new-jersey-mfrs-ins-group-2022-ny-slip-op51234u/

Court: Appellate Term, Second Department
Decided: November 18, 2022
Citation: 2022 NY Slip Op 51234(U) · 77 Misc 3d 131(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Tyorkin v New Jersey Mfrs. Ins. Group, 77 Misc 3d 131(A), 2022 NY Slip Op 51234(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's renewal motion failed because its affidavits supplied no new facts and no reasonable justification for their earlier omission. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying leave to renew the provider's summary judgment motion and opposition to the insurer's cross motion. The Civil Court, Kings County, had previously denied the provider summary judgment and granted dismissal to the insurer. CPLR 2221 (e) (2) requires new facts that would change the prior determination, and CPLR 2221 (e) (3) requires reasonable justification for failing to present them earlier. The submitted affidavits met neither requirement; the provider should have presented all its evidence on the original motions.

Reported in New York Official Reports at Tyorkin v New Jersey Mfrs. Ins. Group (2022 NY Slip Op 51234(U))

[*1]

Tyorkin v New Jersey Mfrs. Ins. Group

2022 NY Slip Op 51234(U) [77 Misc 3d 131(A)]

Decided on November 18, 2022

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2022

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2020-481 K C

Maxim Tyorkin, M.D., as Assignee of Silva Chander Rogerio, Appellant,
against
New Jersey Manufacturers Insurance Group, Respondent.

Law Office of Marina Josovich, P.C. (Marina Josovich of counsel), for appellant. Litchfield Cavo, LLP (Mark A. Everett of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered November 25, 2019. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff’s motion seeking leave to renew his prior motion for summary judgment and his opposition to the branch of defendant’s cross motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In an action by a provider to recover assigned first-party no-fault benefits, by order entered June 21, 2019, the Civil Court (Odessa Kennedy, J.) denied plaintiff’s motion for summary judgment and granted the branch of defendant’s cross motion seeking summary judgment dismissing the complaint. Plaintiff appeals from an order of the Civil Court (Odessa Kennedy, J.) entered November 25, 2019, which, insofar as appealed from, denied the branch of his motion seeking leave to renew his prior motion and his opposition to defendant’s cross motion.

A motion for leave to renew must “be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain [*2]reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]; see Kugler v Kugler, 174 AD3d 876, 877 [2019]). Contrary to plaintiff’s contention, he failed to demonstrate any basis upon which to grant him leave to renew, since the affidavits he submitted in support of his motion asserted no new facts, and, in any event, he failed to provide a reasonable justification for failing to submit the affidavits in support of his original motion for summary judgment and in opposition to defendant’s cross motion for summary judgment. “Plaintiff should have laid bare all of his evidence on the original motion” (Caffee v Arnold, 104 AD2d 352, 352 [1984]; see Popalardo v Marino, 83 AD3d 1029, 1030 [2011]; Mgrditchian v Donato, 141 AD2d 513 [1988]).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 18, 2022

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