Clinton Place Med., P.C. v Country-Wide Ins. Co. (2014 NY Slip Op 50349(U))

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 11, 2012. The order denied defendant’s motion to vacate a judgment and for leave to renew and reargue its cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that, among other things, plaintiff’s assignor had breached a condition of the policy by failing to appear for scheduled independent medical examinations. By order entered January 25, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion, finding that an affidavit submitted by defendant was inadmissible since the affiant’s signature was not notarized. A judgment awarding plaintiff the principal sum of $5,880.51 was subsequently entered pursuant to the order. Defendant thereafter moved to vacate the judgment and for leave to renew and reargue its cross motion and its opposition to plaintiff’s motion, and resubmitted the affidavit in properly sworn form. By order entered June 11, 2012, the Civil Court denied defendant’s motion, and we affirm.

While the Civil Court determined that the submission of the notarized affidavit
did not constitute new evidence sufficient to support a motion for leave to renew,
“CPLR 2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” (Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971, 972 [2012] see also Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391 [2008]). “The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification’ for failing to present it on the prior motion (CPLR 2221 [e] [3])” (Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d at 391). In the present case, we leave undisturbed the Civil Court’s denial of the branch of defendant’s motion seeking leave to renew its cross motion and its opposition to plaintiff’s motion, as defendant failed to set forth a reasonable justification for its initial failure to submit a properly sworn affidavit (see CPLR 2221 [e] [3] Singh v Mohamed, 54 AD3d 933 [2008]). We note that the branch of defendant’s motion seeking leave to reargue its cross motion and its opposition to plaintiff’s motion was untimely (see CPLR 2221 [*2][d] [3]).

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014