A.M. Medical Services, P.C. v Allstate Ins. Co.

[*1] A.M. Medical Services, P.C. v Allstate Ins. Co. 2007 NY Slip Op 51312(U) [16 Misc 3d 130(A)] Decided on June 29, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : McCABE, J.P., TANENBAUM and LIPPMAN, JJ
2006-971 N C. A.M. Medical Services, P.C. a/a/o Isaak Gutgarts, Appellant, -against-



against

Allstate Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Bonnie P. Chaikin, J.), entered March 15, 2006. The order, insofar as appealed from as limited by the brief, denied plaintiff's motion for renewal of its prior motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The motion was supported by an affirmation of counsel, an affidavit of an officer of plaintiff, and various documents annexed thereto. In opposition to plaintiff's motion, defendant argued, inter alia, that the affirmation of counsel was of no probative value and that the affidavit of plaintiff's officer was insufficient to establish personal knowledge of the facts set forth therein. The court below denied plaintiff's motion on this basis and plaintiff moved to renew the motion, annexing a more detailed affidavit of its officer. The court below denied the motion to renew on the ground that plaintiff failed to set forth any facts not previously known at the time of submission of the original motion. The instant appeal ensued.

CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon "new facts not offered on the prior motion that would change the prior determination" or must show "that there has been a change in the law that would change the prior determination." Furthermore, the motion papers must contain a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]). In the instant case, plaintiff did not proffer a reasonable justification for its failure to present the facts upon which its [*2]renewal motion was based to the motion court on its prior motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Moreover, to the extent that plaintiff based its motion upon changes in the law, the cases proffered by plaintiff, which purportedly represented such changes, were neither dispositive of the issue of the sufficiency of plaintiff's officer's affidavit nor did they represent changes in the decisional law. Accordingly, the motion was properly denied.

We note that where there is no change in the decisional law, but a party is of the opinion that the motion court overlooked or misapprehended existing law, the proper vehicle is a motion to reargue (CPLR 2221 [d]). In the instant case, however, plaintiff's motion, to the extent that it could be deemed to be seeking reargument, was untimely made.

McCabe, J.P., and Tanenbaum, J., concur.

Lippman, J., taking no part.
Decision Date: June 29, 2007