Vines v City of New York

Vines v City of New York 2017 NY Slip Op 08032 Decided on November 15, 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 November 15, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.
2016-06445
(Index No. 23979/08)

[*1]Mary Vines, et al., appellants,

v

City of New York, respondent, et al., defendants.

Louis A. Badolato, Brooklyn, NY, for appellants.

Zachary W. Carter, Corporation Counsel, New York, NY (Jane L. Gordon and Jared Hatcliffe of counsel), for respondent.

DECISION & ORDER

Appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 1, 2016. The order denied the plaintiffs' motion for leave to renew their prior motion pursuant to CPLR 3104(d) for review of an order of the same court (Martin Schneier, J.H.O.), dated February 11, 2015.

ORDERED that the order dated April 1, 2016, is affirmed, with costs.

The plaintiffs commenced this action against, among others, the defendant City of New York (hereinafter the City) to recover damages for injuries allegedly sustained by the plaintiff Mary Vines. In July 2014, the plaintiffs moved, inter alia, pursuant to CPLR 3126 to strike the City's answer on the ground that the City willfully and contumaciously failed to comply with discovery demands and orders. The plaintiffs' motion was determined by a Judicial Hearing Officer, who denied it in an order dated February 11, 2015. The plaintiffs then moved pursuant to CPLR 3104(d) for review of the order dated February 11, 2015. By order dated July 30, 2015, the Supreme Court denied the plaintiffs' motion to review. Thereafter, the plaintiffs moved pursuant to CPLR 2221(e) for leave to renew their motion to review the order dated February 11, 2015. By order dated April 1, 2016, the Supreme Court denied the plaintiffs' motion for leave to renew. The plaintiffs appeal.

"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454, 454-455). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]; see Hodzic v M. Cary, Inc., 151 AD3d 1034; Carbajal v Bobo Robo, Inc., 38 AD3d 820, 822). Here, the plaintiffs failed to submit new facts not previously offered that would change the Supreme Court's prior determination on the motion for review of the order dated February 11, 2015 (see Williams v Nassau County Med. Ctr., 37 AD3d 594; see also Cambry v Lincoln Gardens, 50 AD3d 1081, 1082; Zouev v City of New York, 32 AD3d 850, 851). Accordingly, the court providently exercised its discretion in denying the plaintiffs' motion for leave to renew.

RIVERA, J.P., HALL, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court