Renewal proper to correct “procedural oversight” CPLR R. 2221

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

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the
absence of any prejudice to defendants, renewal was properly granted to
plaintiff to correct a procedural oversight on the previous motion and
allow the submission of her examining physician's report in admissible
form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon
renewal, Supreme Court should have adhered to its original
determination granting defendants' motion for summary judgment because
plaintiff failed to raise a triable issue of material fact as to whether
she sustained a serious injury in this accident.

Strange.  Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place.  The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and … absen[t] … any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s