Hodzic v M. Cary, Inc.

Hodzic v M. Cary, Inc. 2017 NY Slip Op 05206 Decided on June 28, 2017 Appellate Division, Second 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 June 28, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2015-02214
(Index No. 5480/12)

[*1]Nifa Hodzic, plaintiff-respondent,

v

M. Cary, Inc., defendant third-party plaintiff-respondent, Dimensional Drywall & Acoustic, defendant third-party defendant- appellant, Quality Craft Marble Tile & Stone, Inc., defendant third-party defendant-respondent.

Morris Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka, Arjay G. Yao, Kevin G. Faley, and Jenna L. Mastroddi of counsel), for defendant third-party defendant-appellant.

Katz & Kern, LLP, New York, NY (Lawrence B. Lame of counsel), for plaintiff-respondent.

Nicolette Gonson Spinner LLP, New York, NY (Benjamin N. Gonson of counsel), for defendant third-party plaintiff-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant third-party defendant Dimensional Drywall & Acoustic appeals from an order of the Supreme Court, Queens County (Dufficy, J.), entered October 2, 2014, which denied its motion for leave to renew those branches of its prior motion which were for summary judgment dismissing the complaint, the third-party complaint, and all cross claims insofar as asserted against it, which had been denied in an order of the same court entered February 7, 2014.

ORDERED that the order entered October 2, 2014, is affirmed, with one bill of costs.

The appellant's initial motion, inter alia, for summary judgment was denied as untimely in an order entered February 7, 2014, from which the appellant did not appeal. Thereafter, the appellant moved for leave to renew those branches of its motion which were for summary judgment, submitting deposition testimony that had been unavailable previously. The Supreme Court denied that 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]; see Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 700-701). Here, the new facts proffered by the appellant did not change the prior determination concerning the untimeliness of its motion for summary judgment (see Abu Dhabi Commercial Bank, P.J.S.C. v Credit Suisse Sec. [USA] LLC, 114 AD3d 432, 433; [*2]Lucente v Riverbay Corp., 58 AD3d 451, 452; Silvera v Strike Long Is., 52 AD3d 497, 498; Tricoche v Warner Amex Satellite Entertainment Co., 48 AD3d 671, 673; Tower Ins. Co. of N.Y. v T & G Contr. Inc., 44 AD3d 933, 934). Accordingly, the Supreme Court properly denied the appellant's motion for leave to renew.

ENG, P.J., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court