Opinion
CA 03-02586.
Decided June 14, 2004.
Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered March 12, 2003. The order, insofar as appealed from, granted defendant's motion for leave to reargue plaintiff's motion for summary judgment and, upon reargument, denied plaintiff's motion on the issue of defendant's negligence.
LAW OFFICES OF EUGENE C. TENNEY, BUFFALO (COURTNEY C. GENCO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
O'SHEA, REYNOLDS CUMMINGS, BUFFALO (MICHELLE PARKER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, GORSKI, MARTOCHE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and defendant's motion is denied.
Memorandum: Plaintiff commenced this action seeking damages for personal injuries that she sustained in a motor vehicle accident when her vehicle collided with defendant's vehicle. Defendant did not oppose plaintiff's motion for summary judgment on the issue of negligence, and Supreme Court granted the motion. More than 30 days after service of a copy of the order granting plaintiff's motion, defendant moved for leave to reargue. The court erred in granting that motion because it was untimely ( see CPLR 2221 [d] [3]; Migliaccio v. Phoenix Ins. Co., 91 A.D.2d 821). In addition, defendant's motion improperly included "matters of fact not offered on the prior motion" (2221 [d] [2]). Defendant contends for the first time on appeal that the motion was actually one seeking leave to renew, not to reargue, and thus that contention is not properly before us ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984). In any event, even assuming, arguendo, that the motion sought leave to renew, we would nevertheless conclude that the court erred in granting it. The purported "new" facts offered by defendant were excerpts from defendant's deposition transcript. Defendant failed to establish that these facts were not in existence or were unavailable at the time of plaintiff's motion ( see 2221 [e] [2]; Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482; Computerized Med. Imaging Equip. v. Diasonics Ultrasound, 303 A.D.2d 962, 964-965; Shouse v. Lyons, 265 A.D.2d 901, 902), and defendant otherwise failed to set forth a "reasonable justification for the failure to present such facts on the prior motion" (2221 [e] [3]; see Computerized Med. Imaging Equip., 303 A.D.2d at 964-965; Kopra v. Aquino, 298 A.D.2d 880, lv dismissed in part and denied in part 99 N.Y.2d 573; Giardina v. Parkview Ct. Homeowners' Assn., 284 A.D.2d 953, lv dismissed 97 N.Y.2d 700).