Messer v Godo

[*1] Messer v Godo 2010 NY Slip Op 50773(U) [27 Misc 3d 135(A)] Decided on April 30, 2010 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, JJ
.

Susan Messer, Plaintiff-Appellant, 570627/09

against

Alex Godo, Defendant-Respondent.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated April 6, 2009, which, upon vacatur of plaintiff's prior default, granted defendant's motion for summary judgment and dismissed the complaint, and (2) an order (same court and Judge), dated August 10, 2009, which denied plaintiff's motion to reargue and renew the aforesaid April 6, 2009 order.

Per Curiam.

Order (Peter H. Moulton, J.), dated August 10, 2009, to the extent appealable, affirmed, with $10 costs. Appeal from order (same court and Judge), dated April 6, 2009, dismissed, without costs, as superseded by the appeal from the August 10, 2009 order.

Plaintiff, who defaulted in opposing defendant's motion for summary judgment and sought to vacate an order granting that motion, failed to demonstrate a meritorious opposition to the motion (see Ogunbemi v New York City Hous. Auth., 65 AD3d 944 [2009]; see also Joseph v GMAC Leasing Corp., 44 AD3d 905 [2007]; St. Rose v McMorrow, 43 AD3d 1146 [2007]). Notably, plaintiff, whose claims for property damage and breach of the warranty of habitability were resolved by a stipulation between the parties in a prior action, failed to submit any medical evidence demonstrating a causal connection between defendant's alleged negligence and plaintiff's personal injuries. Plaintiff also failed to submit any competent evidence supporting her claim for lost income. Therefore, defendant was properly awarded summary judgment.

Civil Court providently exercised its discretion in denying plaintiff renewal of her motion to vacate, since plaintiff did not offer a reasonable justification for her failure to present the purportedly new evidence in support of her initial motion (see CPLR 2221[e][3]; see also Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [2001]). In any event, the purportedly new evidence, some of which was offered for the first time in plaintiff's reply papers, would not have altered the initial determination (see CPLR 2221[e][3]; Estate of Brown v Pullman Group, 60 AD3d 481 [2009]). To the extent plaintiff seeks review of the denial of her motion to reargue, no appeal lies from such denial (see D'Andrea v Hutchins, 69 AD3d 541 [2009]). [*2]

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2010