Mejia-Ortiz v Inoa

Mejia-Ortiz v Inoa 2011 NY Slip Op 07940 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Saxe, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Román, JJ.
6000N 6049/07

[*1]Ramon Mejia-Ortiz, Plaintiff-Appellant,

v

Gavin R. Inoa, et al., Defendants-Respondents.




Calcagno & Associates, Staten Island (Craig A. Borgen of
counsel), for appellant.
Law Offices of Michael A. Barnett, Garden City (Jay M.
Weinstein of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered April 23, 2010, which, to the extent appealable, denied plaintiff's motion to, among other things, renew a prior motion for a default judgment against defendant Brown-Grey, and dismissed the action as abandoned, unanimously affirmed, without costs.

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court properly denied the motion to renew. The only new facts submitted in support of the motion relate to plaintiff's counsel's attempts to serve defendant Inoa after commencement of the action. Even if counsel provided a reasonable explanation for failing to include those facts in the prior motion, they do not warrant a change in the prior determination (see CPLR 2221[e][2],[3]). Indeed, plaintiff still failed to provide an affidavit of merit or a reasonable excuse for the 2½-year delay in moving for a default judgment against defendant Brown-Grey (see Mejia-Ortiz v Inoa, 71 AD3d 517 [2010]). The medical records submitted in reply were not properly before the motion court and, in any event, were not affirmed (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK