Mary T. Heltz, Appellant,v.Bruce S. Barratt et al., Respondents.BriefN.Y.Dec 10, 2014STATE OF NEW YORK To be Argued by: JAMES A. DAVIS, ESQ. Estimated Time for Argument: (10 Minutes) @Juprtmt ornurt APPELLATE DIVISION-FOURTH JUDICIAL DEPARTMENT Appellate Division Docket Number: CA 13-01101. MARY T. HELTZ, Plaintiff-Appellant, vs. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Defendants-Respondents. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Third-Party Plaintiffs-Respondents, vs. GEORGE M. HELTZ, Third-Party Defendant-Respondent. (Appeal No. 1). Erie County Index No.: I2010-009916. (Additional Caption Continued on Inside Front Cover.) BRIEF FOR DEFENDANTS-RESPONDENTS and THIRD-PARTY PLAINTIFFS-RESPONDENTS In Appeal Nos. 1 and 2 PHILIP C. BARTH III, EsQ. JAMEs A. DAvis, EsQ. Of Counsel BARTH SULLIVAN BEHR Attorneys for Defendants-Respondents and Third-Party Plaintiffs-Respondents 43 Court Street - Suite 600 Buffalo, New York 14202 Telephone: (716) 856-1300 BATAVIA LEGAL PRINTING, INC.- Telephone (866) 768·2100 --o- Appellate Division Docket Number: CA 13-01102. MARY T. HELTZ, Plaintiff-Appellant, vs. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Defendants-Respondents. BRUCE S. BARRATT and ERIE LOGISTICS, LLC, Third-Party Plaintiffs-Respondents, vs. GEORGE M. HELTZ, Third-Party Defendant-Respondent. (Appeal No. 2). TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. ii ISSUES PRESENTED ..................................................................................................... 1 STATEMENT OF FACTS ................................................................................................ 3 Proceedings Below ............................................................................................... 4 Appeal No. 1 ............................................................................................... 4 Appeal No. 2 ............................................................................................... 5 The Decision Below .............................................................................................. 5 Appeal No. 1 ............................................................................................... 5 Appeal No. 2 ............................................................................................... 5 ARGUMENT ................................................................................................................... 6 Appeal No.1 .......................................................................................................... 6 POINT I - THE MOVANTS WERE ENTITLED TO SUMMARY JUDGMENT BECAUSE BARRATT WAS NOT AT FAULT IN THE ACCIDENT ................................................... 6 Appeal No. 2 ....................................................................................................... 11 POINT II- THE DENIAL OF A MOTION FOR LEAVE TO REARGUE IS NOT APPEALABLE ..................................... 11 POINT Ill- THE DENIAL OF THE MOTION FOR LEAVE TO RENEW MUST BE UPHELD BECAUSE THE APPELLANT FAILED TO JUSTIFY NOT PRESENTING THE EXPERT AFFIDAVIT TO OPPOSE BARRATT'S SUMMARY JUDGMENT MOTION ..................................... 12 CONCLUSION ............................................................................................................... 18 TABLE OF AUTHORITIES Page(s) CASES: Arms v. Halsey, 43 A.D.3d 1419 (4th Dept. 2007) ........................................................... 9 Badman v. Civil Serv. Employees Assn., 91 A.D.2d 858 (4th Dept. 1982) .................... 12 Blazynski v. A. Gareleck & Sons, Inc., 48 A.D.3d 1168 (4th Dept. 2008) ...................... 14 Bulls v. Massara, 71 A.D.3d 1408 (4th Dept. 2010) ......................................................... 7 Bush v. Blankenheim, 254 A.D.2d 736 (4th Dept. 1998) .................................................. 6 Cooley v. Urban, 1 A.D.3d 900; 767 N.Y.S.2d 546 (4th Dept. 2003) .......................... 7,10 Cox v. Nunez, 23 A.D.3d 427, 428 (2d Dept. 2005) ......................................................... 6 Drew v. J.A. Carmen Trucking Co., Inc., 8 A.D.3d 1112 (4th Dept. 2004) ................... 6-7 Empire Ins. Co. v. Food City, Inc., 167 A.D.2d 983, 562 N.Y.S.2d 5 (4th Dep't 1990) .................................................................................................. 11 Espinoza v. Loor, 299 A.D.2d 167 (1st Dept. 2002) ......................................................... 7 Giardino v. Parkview Court Homeowner's Association, Inc., 284 A.D.2d. 953 (4th Dept. 2001) ....................................................................... 14 Green v. Mower, 302 A.D.2d 1005 (4th Dept. 2003) ........................................................ 8 Hamby v. Benventre, 36 A.D.2d 648 (3d Dept. 1971) ...................................................... 9 HSBC Bank USA, N.A. v. Halls, 98 A.D.3d 718 (2d Dept. 2012) ................................... 12 In Re McDonald, 100 A.D.3d 1349; 953 N.Y.S.2d 751, 953 N.Y.S.2d 516 (4th Dept2012) ...................................................................... 11 lndig v. Finkelstein, 23 N.Y.2d 728 (1968) ..................................................................... 12 King v. Washburn, 273 A.D.2d 725 (3d Dept. 2000) ........................................................ 7 ii Page(s) Kirbyv. Suburban Elec. Eng. Con., 83A.D.3d 1380 (4th Dept. 2011) ...................... 13,17 Lucksingerv. M. T. Unloading Services, 280 A.D.2d 741 (3d Dept. 2001) ....................... 7 Masone v. Westchester County, 229 A. D .2d 657 (3d Dept. 1996) ................................ 1 0 .Namisnak v. Martin, 244 A.D.2d 258 (1st Dept. 1997) ..................................................... 7 Nevarez v. S.R.M. Management Corp., 58 A.D.3d 295 (1st Dept. 2008) ....................... 10 Robinson v. Canso/. Rail Corp., 8 A.D.3d 1080; 778 N.Y.S.2d 387 (4th Dept. 2004) ............................................................................................. 13,17 Rodgers v. Edelman, 79 A.D.3d 1803 (4th Dept. 2010) ................................................... 7 Serbalik v. General Motors Corp, 252 A.D.2d 801 (3rd Dept. 1998), lv. denied 92 N.Y.2d 1001 (1998) ........................................................................ 16 Smith v. Cassidy, 93 A.D.3d 1306; 941 N.Y.S.2d 41 (4th Dep't 2012) .......................... 18 Spano v. County of Onondaga, 105 A.D.2d 1120 (4th Dept. 1984) ............................... 12 Stevens v. Zukowski, 55 A.D.3d 1400 (4th Dept. 2008) .................................................. 7 Stiles v. County of Dutchess, 278 A.D.2d 304 (2d Dept. 2000) ....................................... 7 Strasburg v. Campbell, 28 A.D. 3d 1131 (4th Dept. 2006) ................................................ 7 Tibbits v. Verizon New York, Inc., 40 A.D.3d 1300 (3d Dept. 2007) ......................... 12,16 Tishman Construction Corporation of New York v. City of New York, 280 A.D.2d 374; 720 N.Y.S. 487 (1st Dept. 1996) ........................................ 14,17 Van Doren v. Dressler, 45 A.D.3d 1366 (4th Dept. 2007) ................................................ 9 Wallace v. Kuhn, 23 A.D.3d 1042 (4th Dept. 2005) ......................................................... 8 Yelderv. Walters, 64 A.D.3d 762 (2d Dept. 2009) ........................................................... 7 Zimmerman v. Yuskevich, 306 A.D.2d 403 (2d Dept. 2003) .......................................... 1 0 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) .............................................. 6, 10 iii Page(s) STATUTES: CPLR 2221 (e)(2) ........................................................................................................... 12 Vehicle and Traffic Law§ 1142 ........................................................................................ 9 OTHER AUTHORITIES: Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 78, CPLR C2221 :9C, at 294 ..................................................................................... 12 iv ISSUES PRESENTED 1. Where it is undisputed that the defendant tractor-trailer driver entered the intersection at a reasonable speed and possessing the right of way, and that the other driver's car had been stopped at a stop sign but suddenly entered in front of the tractor- trailer driver, is the tractor-trailer driver entitled to summary judgment dismissing that car driver's passenger's complaint against him on the grounds that he was not negligent as a matter of law? The lAS court answered "Yes." 2. Is a movant who fails to establish that the court overlooked or misapprehended the facts or the law entitled to have her motion to reargue granted? The lAS Court answered "No." 3. Is a denial of a motion to reargue appealable? Not addressed by the lAS court. 4. When an unsuccessful party moved to renew her opposition to summary judgment, but failed to justify her failure to present an accident reconstructionist's affidavit to oppose summary judgment initially, was she entitled to have her motion to renew granted? The lAS Court Answered "No". 1 PRELIMINARY STATEMENT The defendants-third-party-plaintiffs-respondents, Bruce S. Barratt ("Barratt") and his employer Erie Logistics, LLC, (sometimes referred to collectively herein as "Barratt") ask this court to uphold an order granting summary judgment to Barratt and dismissing the complaint. The lower court determined that, in the absence of any driving or road conditions requiring Barratt to reduce his speed, Barratt was entitled to approach the subject intersection in his tractor-trailer anticipating that the third-party-defendant George M. Heitz (hereinafter "Heitz"), who drove the car in which his wife, plaintiff- appellant Mary T. Heitz (hereinafter "plaintiff-appellant") was a passenger, would obey the traffic laws requiring Heitz, who had stopped at the stop sign on the adjoining road, to yield the right of way to Barratt. Therefore, Barratt could not be faulted for the collision that ensued when Heitz suddenly entered the intersection, leaving Barratt insufficient time to stop his tractor-trailer. The plaintiff-appellant opposed Barratt's summary judgment motion by arguing that Barratt was speeding and so contributed to the accident, but failed to present any evidence that Barratt's speed was a substantial factor causing the collision. The plaintiff-appellant's appeal on this issue is referred to herein as Appeal No. 1. The plaintiff-appellant subsequently moved for leave to reargue and renew. Upon her motion to reargue, she claimed simply that the court below failed to appreciate that the speed of the tractor-trailer "may have changed the outcome of the collision." The court correctly determined that this claim was mere speculation, and moreover was essentially the same argument presented in her prior motion. Upon her motion to renew, she failed to justify not presenting an expert affidavit to support her prior motion. 2 The court correctly determined that it could not grant her motion to renew without this justification. The plaintiff-appellant's appeal on this issue is hereinafter referred to as Appeal No. 2. STATEMENT OF FACTS The plaintiff-appellant's complaint alleges that, on October 30, 2009, at approximately 8:30 p.m., the vehicle Heitz was driving and in which the plaintiff- appellant was a passenger collided with a tractor-trailer owned by Erie Logistics at the intersection of State Route 243 and East Centerfield Road in Rushford, New York. (R.38.) Barratt was traveling west on Route 243. (R.92, 93.) The speed limit on that part of the road is 55 mph. (R.96.) There are no stop signs for the traffic on State Route 243 at its intersection with East Centerville Road. (R.96.) Traffic on East Centerville Road has a stop sign in each direction. (R.96, 121.) Heitz was driving north on East Centerville Road and brought his vehicle to a stop at the stop sign at the subject intersection. (R.121.) He looked left, then right, then proceeded eight to 1 0 feet (R.123) to where he could-get a better look for oncoming traffic (R.122) because he could not see if anything was coming (R.123). He intended to drive straight through the intersection, remaining on Centerville Road. (R.133.) Inexplicably, Heitz did not see any traffic at this point, so he drove into the intersection. (R.123.) Barratt testified that he was traveling 57 miles per hour (R. 99), two miles above the speed limit, at the time of the accident. (R. 96). The tractor trailer's "black box" 3 provides more detail about the accident. It recorded that Barratt last traveled 64 miles per hour over one minute before the collision. From 30 seconds before the collision to the point at which he applied his brakes, Barratt was traveling within one mile per hour of 60 miles per hour. (R. 201.) Barratt saw Heitz's vehicle stopped at the stop sign from approximately one eighth to one quarter mile away. (R. 99.) As noted there was no stop sign that applied to Barratt. (R. 96.) He observed the Heitz vehicle the entire time, up to and including when it accelerated from the stop sign only a couple hundred feet in front of Barratt's tractor trailer. (R. 99, 100, 1 02.) Barratt immediately applied his brakes and turned his vehicle to the left when Heitz's vehicle entered his lane. (R. 101, 1 02.) According to the black box, Barratt applied his brakes between one and two seconds before the collision. (R. 201.) Despite these evasive maneuvers, Barratt was unable to avoid hitting the rear quarter panel of Heitz's vehicle. (R.1 02, 105.) Proceedings Below Appeal No.1 Barratt moved for summary judgment, arguing that he was not negligent in this incident and that Heitz was the sole cause of plaintiff-appellant's injuries because Heitz did not obey the rules of the road, Barratt had maintained a proper lookout while driving his tractor trailer, and Heitz entered the intersection in a manner that did not allow Barratt sufficient time to avoid the collision. 4 Appeal No. 2. The plaintiff-appellant moved for leave to reargue and to renew, plainly mischaracterizing Barratt's testimony regarding his description of the incident, and erroneously arguing that she was entitled to submit an accident reconstructionist's affidavit after summary judgment had been granted against her, in order to raise a question of fact as to Barratt's negligence. The Decision Below Appeal No.1 The court below held that Barratt met their burden to establish entitlement to judgment as a matter of law because Heitz was negligent, and that the plaintiff-appellant failed to present any evidence of comparative negligence on the part of Barratt. Further, speed is undisputed and was within two to six miles per hour above the speed limit, and the plaintiff-appellant failed to proffer expert testimony relating to speed sufficient to make it a material fact. (R.246.) Appeal No.2 The court denied plaintiff-appellant's motion to reargue because only speculation was offered to support the argument that Barratt's speed contributed to the incident. The court denied the plaintiff-appellant's motion to renew because she did not justify her failure to present the expert affidavit when she initially opposed Barratt's summary judgment motion. (R.28.) 5 ARGUMENT Appeal No.1 Although a driver who has the right of way entering an intersection has a duty to observe what there is to be seen and attempt to avoid a collision, such a driver is also entitled to anticipate that others on the road will obey traffic laws that would require other drivers to yield. When such a driver establishes that he is not negligent in the happening of an accident, that driver is entitled to judgment as a matter of law. POINT I THE MOVANTS WERE ENTITLED TO SUMMARY JUDGMENT BECAUSE BARRATT WAS NOT AT FAULT IN THE ACCIDENT. The decision of the court below should stand because, as the lAS court correctly found, the record evidence indicates clearly that the only negligence related to this incident was Heitz's. A party establishes entitlement to summary judgment through evidence that he or she was not negligent in the happening of the accident. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Summary judgment on the issue of negligence is appropriate when the "facts clearly point to the negligence of one party without any fault or culpable conduct by the other party." Bush v. Bfankenheim, 254 A.D.2d 736 (4th Dept. 1998). A driver with the right of way when entering an intersection has a duty to observe what there is to be seen and to take reasonable action to avoid a collision. Cox v. Nunez, 23 A.D.3d 427, 428 (2d Dept. 2005); Drew v. J.A. Carmen Trucking Co., Inc., 8 6 A.D.3d 1112, 1113 (4th Dept. 2004); Cooley v. Urban, 1 A.D.3d 900, 901 (4th Dept. 2003); King v. Washburn, 273 A.D.2d 725, 726 (3d Dept. 2000). "A driver cannot blindly and wantonly enter an intersection but, rather, is bound to use such care to avoid a collision as an ordinarily prudent motorist would have under the circumstances." Strasburg v. Campbell, 28 A.D. 3d 1131 , 1132 (4th Dept. 2006)(internal citations omitted). However, it is well-settled that a driver with the right of way is entitled to anticipate that other drivers on the road will obey traffic laws that would require him or her to yield. Rodgers v. Edelman, 79 A.D.3d 1803 (4th Dept. 2010); Stiles v. County of Dutchess, 278 A.D.2d 304, 305 (2d Dept. 2000); Namisnak v. Martin, 244 A.D.2d 258, 260 (1st Dept. 1997). That driver is entitled to summary judgment when he or she had only seconds to react to a vehicle that failed to yield the right of way and there was nothing that driver could reasonably do to avoid the collision. Bulls v. Massara, 71 A.D.3d 1408, 1409 (4th Dept. 2010); Yelder v. Walters, 64 A.D.3d 762, 764 (2d Dept. 2009), Stevens v. Zukowski, 55 A.D.3d 1400, 1401 (4th Dept. 2008); Espinoza v. Loor, 299 A.D.2d 167 (1st Dept. 2002); Lucksinger v. M. T. Unloading Services, 280 A.D.2d 741,742 (3d Dept. 2001). A driver with the right of way is entitled to summary judgment where he was traveling slightly above the speed limit if the speed is not a proximate cause of the accident: Supreme Court erred in denying the motion of Swain for summary judgment dismissing the complaint against him. In support of the motion, Swain established that he entered the intersection with a green light, that he was not speeding, that he had no opportunity to avoid the accident, and that Kuhn drove through the red light without stopping. Swain thus 7 established as a matter of law that the sole proximate cause of the accident was the negligence of Kuhn (see Persaud v. Darbeau, 13 AD3d 347 [2004]); Iqbal v. Petrov, 9 AD3d 416 [2004]; Lestingi v. Holland, 297 AD2d 627, 628 [2002]), and neither nor Kuhn raised a triable issue of fact whether Swain "was at fault in the happening of the accident or whether he could have done something to avoid the collision" (Lestingi, 297 AD2d at 629). In the absence of any condition that would have required him to reduce his speed, Swain was entitled to approach the intersection without slowing and was further entitled to anticipate that Kuhn would obey the traffic laws that required him to yield (see Barile v. Carroll, 280 AD2d 988 [2001 ]; see generally Doxtader v. Janczuk, 294 AD2d 859 [2002], lv denied 99 NY2d 505 [2003]) ... Kuhn's contention that Swain may have been operating his vehicle slightly above the speed limit is also unavailing because, even assuming, arguendo, that Swain was exceeding the speed limit by five miles per hour, we conclude there is no evidence in the record before us that the speed at which Swain was traveling was a proximate cause of the accident (see Lucksinger v. M. T. Unloading Servs., 280 AD2d 7 41-7 42 [2001]; Mattv. Tricil [N.Y.], Inc., 260AD2d 811,812 [1999]). Wallace v. Kuhn, 23 A.D.3d 1042, 1044 (4th Dept. 2005)(emphasis added). See also Green v. Mower, 302 A.D.2d 1005, 1006 (4th Dept. 2003)(holding that defendant's Vehicle and Traffic Law violation was not a proximate cause of the accident and is entitled to summary judgment because of the other driver's failure to yield the right of way). Here, the testimony of Barratt, Heitz, and the plaintiff-appellant establishes that Heitz failed to yield the right of way by entering the intersection from a stop sign immediately in front of Barratt's path. There are no stop signs that applied to Barratt at the intersection. Barratt saw Heitz's vehicle accelerate from the stop sign and into his path. Moreover, Heitz and the plaintiff-appellant testified that they never saw Barratt's tractor trailer at any point prior to the collision. 8 Barratt's testimony that he was traveling 57 miles per hour, two miles per hour above the speed limit, does not establish that he was proximate cause of the accident. Barratt saw Heitz's vehicle stopped at the stop sign when he was approximately one eighth to one quarter of a mile away from the intersection. Heitz's vehicle began to accelerate from the stop sign when Barratt was a couple hundred feet from the intersection. Barratt immediately applied his brakes and turned his tractor trailer to the left. Despite these evasive maneuvers, Barratt was unable to avoid hitting the rear quarter panel of Heitz's vehicle. Accordingly, Barratt acted prudently and reasonably while approaching the intersection and in attempting to avoid the collision and, as such, is entitled to summary judgment. In addition, Vehicle and Traffic Law § 1142(a) provides the rule for proceeding from a stop sign: a vehicle after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection. An unexcused violation of a Vehicle and Traffic Law section compels a finding of negligence. Arms v. Halsey, 43 A.D.3d 1419, 1419-20 (4th Dept. 2007). If a-party failed to yield to traffic on the roadway in violation of the Vehicle and Traffic Law and the violation was the proximate cause of the accident, the moving party is entitled to summary judgment on the issue of negligence. Van Doren v. Dressler, 45 A.D.3d 1366, 1367 (4th Dept. 2007); Hamby v. Benventre, 36 A.D.2d 648, 649 (3d Dept. 1971). Here, it is uncontroverted that Heitz violated Vehicle and Traffic Law § 1142 and that his violation was the sole proximate cause of the accident. 9 Having established entitlement to judgment as a matter of law, Barratt shifted the burden to the other parties to raise a triable issue of material fact: One opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate an acceptable excuse for his failure to meet the requirement; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, supra, 49 N.Y.2d at 562. See also Zimmerman v. Yuskevich, 306 A.D.2d 403 (2d Dept. 2003); Masone v. Westchester County, 229 A.D.2d 657 (3d Dept. 1996). Cooley v. Urban, 1 A.D.3d 900; 767 N.Y.S.2d 546 (4th Dept. 2003), cited in the plaintiff-appellant's brief, is not on point. Cooley held that the defendant was comparatively negligent based on his own testimony that he failed to slow down or make some evasive maneuver in order to avoid the collision. Here, the facts are just the opposite. Barratt testified that he did slow down. The data collected from the "black box" confirms this testimony. Also, he steered to the left in an evasive maneuver. There is no genuine dispute as to his efforts to avoid the collision, which was inevitable. In addition, Nevarez v. S.R.M. Management Corp., 58 A.D.3d 295 (1st Dept. 2008), which is cited by the plaintiff-appellant in support of her argument that there is a question of fact as to whether Barratt had the right of way and used reasonable care to avoid the collision, is readily distinguishable. Nevarez found there was conflicting testimony from a passenger in the plaintiff's vehicle as to whether the defendant, who did not have a stop sign, was traveling "mad fast" as he approached the intersection. /d. 10 at 298. Here, there is no such conflicting testimony. Both the plaintiff-appellant and Heitz never saw Barratt's tractor-trailer, and testimony from Barratt and black box evidence indicate that he was traveling between 57 and 60 miles per hour in a 55 mile per hour zone when he applied his brakes. Here, the parties' deposition testimony establishes that Barratt are entitled to judgment as a matter of law. There is nothing in their testimony that raises a triable issue of fact as to Barratt's negligence. Further, any allegations of Barratt's negligence contained in Heitz's or the plaintiff-appellant's testimony are unsubstantiated because both admitted that they did not see his tractor trailer prior to the collision. Accordingly, this court should uphold the lower court's determination that Barratt are entitled to judgment as a matter of law. Appeal No.2 The denial of a motion for leave to reargue is not appealable. Although the court is granted broad discretion in granting a motion to renew, the CPLR requires that a movant justify its failure to include evidence that was not a part of the prior motion before this discretion can be exercised. The plaintiff-appellant offered no such justification in her motion to renew. POINT II THE DENIAL OF A MOTION FOR LEAVE TO REARGUE IS NOT APPEALABLE The denial of a motion for leave to reargue is not appealable. In Re McDonald, 100 A.D.3d 1349; 953 N.Y.S.2d 751,953 N.Y.S.2d 516 (4th Dept 2012) (citing Empire 11 Ins. Co. v. Food City, Inc., 167 A.D.2d 983, 562 N.Y.S.2d 5 (4th Dep't 1990)); see also Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 78, CPLR C2221 :9C, at 294. Therefore, the lower court's denial of the plaintiff-appellant's motion to reargue should stand, and this Court should not consider this part of the plaintiff- appellant's appeal. POINT Ill THE DENIAL OF THE MOTION FOR LEAVE TO RENEW MUST BE UPHELD BECAUSE THE APPELLANT FAILED TO JUSTIFY NOT PRESENTING THE EXPERT AFFIDAVIT TO OPPOSE BARRATT'S SUMMARY JUDGMENT MOTION It is well settled that a party opposing a motion for summary judgment "must lay bare his proof in evidentiary form and raise an issue of fact sufficient to send to the jury." Spano v. County of Onondaga, 105 A.D.2d 1120 (4th Dept. 1984), citing lndig v. Finkelstein, 23 N.Y.2d 728 (1968) and Badman v. Civil Serv. Employees Assn., 91 A.D.2d 858 (4th Dept. 1982). A motion to renew is not a second chance to remedy inadequacies that occurred in failing to use proper diligence in the original instance. Tibbits v. Verizon New York, Inc., 40 A.D.3d 1300, 1303 (3d Dept. 2007). A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e]][2])," HSBC Bank USA, N.A. v. Halls, 98 A.D.3d 718, 720 (2d Dept. 2012), or may based upon facts within a party's knowledge at the time of the prior motion if the party establishes a reasonable justification for failing to present those 12 facts in the prior motion. Robinson v. Consol. Rail Corp., 8 A.D.3d 1080 (4th Dept. 2004)(emphasis added). To prevail on her motion, the plaintiff-appellant must show that the "new" information was not existent or available at the time of the motion. This case compares directly with Kirby v. Suburban Elec. Eng. Con., 83 A.D.3d 1380 (4th Dept. 2011), which held: Here, plaintiffs failed to demonstrate that their purported new evidence was not in existence or not available at the time of Suburban's cross motion (see Patel v Exxon Corp., 11 AD3d 916 [2004]). In support of their motion for leave to renew, plaintiff submitted the affidavits of two employees of International Paper, where the machine that caused the injury at issue was located. We conclude, however, that the information presented in those affidavits could have been discovered and presented earlier with due diligence (see Ford v Lasky, 300 AD2d 536 [2002]). Indeed, the evidence submitted in support of the motion for leave to renew "was within the purview of [s'] knowledge at the time" of Suburban's cross motion (Tibbets v Verizon N.Y., Inc., 40 AD3d 1300, 1303 [2007]). Kirby, Bupra, 83 A.D.3d at 1381 (emphasis added). The information relied upon by plaintiff-appellant's expert was clearly existent and available to the movant prior to the motion date. The movant must also offer a reasonable justification for her failure to include her expert's affidavit in her opposition to the defendants' underlying motion: "Although a court has discretion to 'grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made' ... , it may 13 not exercise that discretion unless the movant establishes a 'reasonable justification for the failure to present such facts on the prior motion'" (Robinson v. Consolidated Rail Corp., 8 AD 3d 1 080). Here, the affidavit of plaintiffs' expert submitted in support of the plaintiffs' motion does not present new facts, nor have plaintiffs offered a reasonable excuse for failing to submit the affidavit in opposition to the prior motions (see Conley v. Central Sq. School Dist., 255 AD2d 981; Welch Foods v. Wilson, 247 AD2d 830). Blazynski v. A. Gareleck & Sons, Inc., 48 A.D.3d 1168, 1170 (4th Dept. 2008)(emphasis added). See also Giardino v. Parkview Court Homeowner's Association, Inc., 284 A.D.2d. 953, 954 (4th Dept. 2001)("[a]lthough plaintiff submitted new information in support of the motion ... she failed to provide a reasonable justification for her failure to include that new information at the time of the original motion and cross-motions[.]"). No such justification was offered here. In support of the plaintiff-appellant's motion for leave to renew, the movant relies on Tishman Construction Corporation of New York v. City of New York, 280 A.D.2d 374 (1st Dept. 1996) for the proposition that a motion for leave to renew should be granted "so as not to defeat substantial fairness." However, a more accurate reading of Tishman establishes that the plaintiff-appellant must exercise due diligence and provide a reasonable excuse in attempting to produce the newly discovered evidence: Initially, we note that the motion court correctly found that a court of original jurisdiction may entertain a motion to renew or vacate a prior order or judgment. .. as long as the moving party exercised due diligence in attempting to produce the newly discovered evidence (Levitt v County of Suffolk, supra, 14 at 422; Sciss v Metal Polishers Union Local BA, 149 AD2d 318). We disagree with the motion court's conclusion that defendant did not act with due diligence, however, and find that defendant provided a reasonable excuse for the unavailability of the records until the within renewal motion was made[.] /d. at 377 (emphasis added). Here, plaintiff-appellant submits the affidavit of Thomas C. Onions ("Onions"), an accident reconstruction expert, in support of her motion to renew. Onions' affidavit is based upon facts that were available at the time of the prior motion. Onions reviewed the police accident report, supplement police accident report, Erie Logistics, LLC accident report, MV-1 04 report, damage appraisal, vehicle damage photographs, the testimony of the parties and the tractor trailer's black box information. It is respectfully submitted that this evidence was in existence long before the time of the defendants' motion for summary judgment, and that the plaintiff-appellant has failed to present a reasonable justification for failing to present this evidence in support of her affirmation in opposition. Onions~ affidavit indicates that he obtained measurements from the accident scene on November 27, 2012, over six weeks after defendants' motion for summary judgment was granted. The plaintiff-appellant's attorney alleges that he had a reasonable justification for failing to retain an expert to oppose the defendants' motion for summary judgment: he believed that expert testimony would not be necessary to oppose the motion because Barratt did not establish their primary facie case. However, 15 the plaintiff-appellant has failed to reference any case law to support her argument that attorney miscalculation is a reasonable excuse in failing to retain an expert opinion. On the contrary, case law clearly establishes that attorney miscalculation is not a sufficient excuse for the failure to include previously available information. Tibbits, supra, clearly holds that the failure to present evidence in the underlying motion based on attorney miscalculation is not a reasonable justification for granting a motion for leave to renew: Supreme Court's denial of 's motion to renew was also proper... plaintiff's explanation that she failed to offer competent proof in the first instance because she viewed defendant's proffer insufficient is similarly unavailing (see Mgrditchian v Donato, 141 AD2d 513, 513 [1988]; see also Serba/ik v General Motors Corp., 252 AD2d 801, 802 [1998], lv denied 92 NY2d 1001 [1998]). A motion for reconsideration is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance (see Carota v Wu, 284 AD2d 614, 617 [2001]). Tibbits, supra, 40 A.D.3d 1300, 1302-1303 (3rd Dept. 2007)(emphasis added). See also, Serbalik v. General Motors Corp, 252 A.D.2d 801 (3rd Dept. 1998), lv. denied 92 N.Y.2d 1001 (1998). It is respectfully submitted that the information that is the basis for Onions' report was available since the depositions of the parties and the disclosure of the "black box" data from the defendants' tractor-trailer, well before the prior summary judgment motion. The plaintiff-appellant failed to exercise due diligence when she did not retain an expert and submit the expert's affirmation with her underlying affirmation prior to the Court 16 granting the defendants' motion for summary judgment, and she can offer no reasonable excuse for this failure. Tishman Construction Corp. of New York v. City of New York, 280 A.D.2d 374; 720 N.Y.S. 487 (1st Dep't 1996), cited by the plaintiff-appellant in her brief, does not support her case. In that case, the court held that the defendant had a reasonable excuse for the unavailability of records and that there was no strategy of delay on the part of the moving defendants. Here, the court noted that the plaintiff-appellant had not established a "reasonable justification for failure to present such facts on the prior motion", which is a statutory pre-requisite before the court can exercise its discretion and grant a motion to renew. Robinson v. Consolidated Rail Corp., 8 A.D.3d 1080; 778 N.Y.S.2d 387 (4th Dep't 2004), cited by the plaintiff-appellant in her brief, actually supports Barratt's position. There, this Court denied the plaintiff's motion to renew, holding that a court may not exercise its discretion to grant a motion to renew because the plaintiff "failed to provide a reasonable justification for her failure to produce the additional proof on the prior motion." /d. Therefore, it is exactly on point, and this Court should uphold the decision of the lower court denying the plaintiff-appellant's motion to renew because she failed to provide a reasonable justification for her failure to produce the additional proof in her opposition to the original motion. Similarly, Kirby, supra, 83 A.D.3D 1380, also cited in the plaintiff-appellant's brief, also supports Barratt's position. It held the same thing Robinson, supra, held, and it even cited Robinson. 17 Smith v. Cassidy, 93 A.D.3d 1306; 941 N.Y.S.2d 41 (4th Dep't 2012) is distinguishable from the case at bar. Smith dealt with newly discovered evidence and held that the plaintiffs were justified in not offering this evidence in the original motion. Here, the plaintiff-appellant seeks to present an interpretation of evidence already available at the time of the prior motion. Further, the plaintiff-appellant still has not presented any justification for her failure to include the expert report in her papers in opposition to the prior motion. CONCLUSION For the foregoing reasons and in accord with the authorities cited and discussed herein, Bruce S. Barratt and Erie Logistics, LLC, respectfully request that this court issue an order affirming the order appealed from granting summary judgment dismissing the complaint against them (Appeal No. 1 ), and denying plaintiff-appellant's motion to reargue and renew (Appeal No. 2). August 20, 2013 James A. Davis 18
