CPLR R. 2221(e) Motion for Leave to Renew

After the plaintiffs failed to file a note of issue in compliance
with a certification order dated July 8, 2005, the action was dismissed
pursuant to CPLR 3216 on October 28, 2005. Almost two years later, the
plaintiffs moved, in effect, to vacate the dismissal and to restore the
action to the active calendar. The Supreme Court denied the plaintiffs'
motion on the ground that the plaintiffs failed to provide an affidavit
of merit from a medical expert. The plaintiffs subsequently moved,
inter alia, for leave to renew their motion to vacate, supported by a
physician's affidavit of merit. The court denied that branch of the
plaintiffs' motion which was for leave to renew, finding that the
plaintiffs had failed to establish a valid excuse for not submitting
the expert affidavit with the prior motion to vacate.

A motion for leave to renew must be based upon new facts not offered on the prior motion [*2]that
would change the prior determination, and the motion must also contain
a reasonable justification for the failure to present such facts on the
prior motion (see CPLR 2221[e]; Chunqi Liu v Wong, 46 AD3d 735; Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).
Here, the affidavit of merit, which was conclusory, would not have
changed the prior determination, as it was insufficient to establish
that the medical malpractice action was meritorious (see Nowell v NYU Med. Ctr., 55 AD3d 573, 574; Bollino v Hitzig, 34 AD3d 711; Perez v Astoria Gen. Hosp.,
26 AD2d 457, 458). Since the new affidavit proffered by the plaintiffs
would not have changed the prior determination, that branch of the
plaintiffs' motion which was for leave to renew was properly denied (see Peycke v Newport Media Acquisition II, Inc., 40 AD3d 722; Williams v Nassau County Med. Ctr., 37 AD3d 594).