Renewal and a missing stip

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

Joseph v Board of Educ. of the City of New York, 2012 NY Slip Op 00306 (1st Dept., 2012)

Where the parties stipulated to a date for making a summary judgment motion and defendant inadvertently failed to append the "so ordered" version of the stipulation, the motion court improvidently exercised its discretion in finding the motion to be untimely. On the motion to renew, defendant provided a so-ordered version of a stipulation, offered a reasonable excuse for its failure to include the new evidence in the original motion (i.e., law office failure), and demonstrated the merit of its defense (see CPLR 2221[e]). In addition, there is no claim of prejudice by plaintiff (see Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). That the additional evidence was available at the time of the original motion is not dispositive (see Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [2010]; Scannell, 256 AD2d at 214). Here, the additional evidence addressed an issue raised by the court in the original decision (Scannell, 256 AD2d at 214). In such circumstances, it was error for the court not to consider the new evidence (id.).


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