Stipulations and 2221

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
(e) Motion for Leave to Renew

Churchill v Malek, 2011 NY Slip Op 03673 (App. Div. 1st 2011)

Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant's unsubstantiated claim that plaintiff's mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).

Defendant's argument that plaintiff is bound by prior stipulations is unavailing, since both documents were clearly denominated as orders. Equally unavailing is defendant's contention that plaintiff's motion to reargue was untimely. The prior order was never served with notice of entry; therefore, the thirty-day period set forth in CPLR 2221(d)(3) has not been triggered (see Zhi Fang Shi v Sanchez, 36 AD3d 486 [2007]).

Yerushalmi v Yerushalmi, 2011 NY Slip Op 02657 (App. DIv., 2nd 2011)

" A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion'" (Swedish v Beizer, 51 AD3d 1008, 1010; quoting Ellner v Schwed, 48 AD3d 739, 740; see CPLR 2221[e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688). " Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion'" (Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668, 669, quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403, 403; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 982).

Here, the defendant's motion, in effect, for leave to renew was not based upon new facts in existence at the time of the original motion which would have changed the prior determination, but consisted of factual material that was merely cumulative with respect to the factual material submitted in connection with the prior motion. Accordingly, the motion, in effect, for leave to renew was properly denied.

Prinz v New York State Elec. & Gas, 2011 NY Slip Op 02648 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, which had been granted by the Supreme Court in an earlier order. "A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination'" (Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480, quoting CPLR 2221[e][2]; see Renna v Gullo, 19 AD3d 472, 473; Kaufman v Kunis, 14 AD3d 542). Here, the allegedly new facts offered would not have changed the prior determination (see CPLR 2221[e][2]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 985).

Under the circumstances of this case, the Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to amend his complaint (see Kazakhstan Inv. Fund v Manolovici, 2 AD3d 249, 250).

 

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