Madison v Tahir

Madison v Tahir 2007 NY Slip Op 09212 [45 AD3d 744] November 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Michelle M. Madison, Appellant,
v
Shannon Tahir et al., Respondents.

—[*1] Winkler, Kurtz, Winkler & Kuhn, LLP, Port Jefferson Station, N.Y. (Richard D. Winkler of counsel), for appellant.

Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Batrone of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated June 28, 2006, which denied her motion for leave to renew her opposition to the defendants' prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), which had been granted in an order dated December 16, 2005.

Ordered that the order is affirmed, with costs.

In an order dated December 16, 2005, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The plaintiff appealed from that order. That appeal, however, was dismissed for failure to prosecute by decision and order on motion of this Court dated September 11, 2006.

The plaintiff also moved for leave to renew her opposition to the defendants' motion. The Supreme Court denied her motion, and we affirm.

In support of her motion for leave to renew, the plaintiff needed to proffer both new [*2]facts not presented on the prior motion that would warrant denial of the defendants' motion for summary judgment dismissing the complaint, and a reasonable justification for the failure to have presented such facts on the prior motion (see CPLR 2221 [e] [2], [3]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]). In addition, review in this Court is further limited by the dismissal of the plaintiff's appeal from the order dated December 16, 2005.

As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750 [1999]; Bray v Cox, 38 NY2d 350 [1976]; St. Claire v Gaskin, 295 AD2d 336, 337 [2002]).

The plaintiff has not demonstrated any basis for the exercise of such discretion. Given this limited review, we need not consider the issue raised on the instant appeal, as that issue could have been raised on the appeal from the order dated December 16, 2005 (see Gihon, LLC v 501 Second St., LLC, 29 AD3d 630 [2006]; Hepner v New York City Tr. Auth., 27 AD3d 418, 419 [2006]). In any event, the plaintiff failed to demonstrate a reasonable justification for her failure to have proffered, in opposition to the defendant's motion for summary judgment dismissing the complaint, the alleged new facts presented on her motion for leave to renew. Miller, J.P., Ritter, Goldstein and Dickerson, JJ., concur.