Zebulun v Bah

Zebulun v Bah 2006 NY Slip Op 08884 [34 AD3d 378] November 30, 2006 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Damte Zebulun, Appellant,
v
Mamadou Oury Bah et al., Respondents.

—[*1]Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 4, 2005, which denied plaintiff's motion to vacate a default judgment and renew a prior motion seeking to vacate dismissal of the complaint, unanimously affirmed, without costs.

Plaintiff's latest motion was not based upon new facts (CPLR 2221 [e] [2])—the physician's affirmation he submitted was dated December 9, 2003—and plaintiff did not explain his failure to present such facts on the prior motion (CPLR 2221 [e] [3]). Hence, leave to renew was properly denied (see e.g. Wal-Mart Stores, Inc. v United States Fid. & Guar. Co., 11 AD3d 300, 301 [2004]; Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [2001]). The motion court was not obliged to grant plaintiff's request for renewal simply because defendants had failed to oppose it. Concur—Buckley, P.J., Tom, Mazzarelli, Williams and McGuire, JJ.