State Farm Mut. Auto. Ins. Co. v Unique Flooring Co., Inc

[*1] State Farm Mut. Auto. Ins. Co. v Unique Flooring Co., Inc 2006 NY Slip Op 50560(U) [11 Misc 3d 1074(A)] Decided on April 6, 2006 District Court Of Nassau County, First District Chaiki, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2006
District Court of Nassau County, First District

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY as Subrogee of Yung-Hee Park, Plaintiff

against

UNIQUE FLOORING CO., INC. and MARCELLO DEPAULA, Defendants.



13788/04



Nicolini Paradise Ferretti & Sabella

Unique Flooring Co., Inc., pro se

Marcello DePaula, pro se

Bonnie P. Chaiki, J.

By order dated February 28 2006, the Honorable Valerie J. Bullard referred the instant motion to this Court for review and determination pursuant to CPLR 2221(c).

By order dated August 5, 2006, 2005, this Court denied the plaintiff's unopposed application for an order granting a default judgment against one defendant UNIQUE FLOORING CO., INC (UNIQUE) in this subrogation action for property damage because plaintiff failed to supply the Court with all the supporting proof required by CPLR §3215(f). Specifically, plaintiff failed to include an affidavit that at least twenty (20) days prior to entry of the default judgment, it had mailed another copy of the summons to the defaulting corporation at its last known address. The requirement for the second notice applies where entry of a default judgement is based upon the non-appearance of a corporate defendant that had been initially served with process pursuant to BCL §306(b) as in this case. See, CPLR §3215(g)(4)(i) and (ii).

In the instant motion, also unopposed, the plaintiff seeks to renew and/or reconsider, i.e. reargue, its prior application. While this Court would have been inclined to grant this unopposed application against a defaulting corporation, it is constrained to deny the application because of its deficiencies - again.

Plaintiff has supplied the Court with an affidavit from Roselinda Temperino in its attempt to remedy the lack of proof in its first application. However, the affidavit fails to comply with the simple, but mandatory, statutory requirements of CPLR §3215(g)(4)(i) and (ii), i.e. that an additional copy of the summons be sent to the corporation at its last known address at least 20 days earlier. Ms. Temperino alleges she sent a "notice" to an address "designated by an attorney". [*2]

In addition to the ambiguous, non-complying affidavit, counsel's affirmation does not offer an explanation as to why the required proof was not furnished in its original application. Such an explanation is clearly required under CPLR 2221(e) which states that an application for renewal "shall contain reasonable justification for failure to present the new facts on the prior

STATE FARM v. UNIQUEPage 2

13788/04

motion." [emphasis added]

In order to consider the new facts, the court must find that the party seeking renewal did not know of the facts at the time of the original motion, or that the party has a reasonable excuse for failing to present those facts on the original motion. See, Yarde v. New York City Transit Auth., 4 AD3d 352 (2nd Dept. 2004); Johnson v. Marquez, 2 AD3d 786 (2nd Dept. 2003); Riccio v. Deperalta, 274 AD2d 384 (2nd Dept. 2000).

While the court may grant renewal on facts known to the party when the previous decision was made, the determination of whether to do so is in the discretion of the court. See, Petsako v. Zweig, 8 AD3d 355 (2nd Dept. 2004); and Karlin v. Bridges, 172 AD2d 644 (2nd Dept. 1991).

Although this application is unopposed, it would be an abuse of this Court's discretion to consider the new, non-conforming affidavit or the affirmation of attorney that fails to address the reason for the omission of missing information in the original motion papers as required by CPLR 2221(e). It would be even more of an abuse in light of this Court's recent decision dated March 14, 2006 in an almost identical matter wherein this Court advised this same attorney, that the very same statutory element was missing in his affirmation. See, STATE FARM v. CRESPO, Index No. 3199/04. [Dist. Ct., Nassau Co., unpublished]

" . . . leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." Renna v. Gullo, 19 AD3d 472, 472, 797 NYS2d 115 [2d Dept, 2005]. See also, O'Dell v. Caswell, 12 AD3d 492 (2nd Dept. 2004). Accordingly, the Court must deny the renewal portion of this application.

Insofar as the movant seeks "reconsideration" or reargument, the application is also denied as the movant has not alleged that the Court misapprehended the relevant law or the facts.

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

______________________ [*3]

District Court Judge

Dated:April 6, 2006



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