Peretz v. Xu

205 A.D.3d 746

165 N.Y.S.3d 733 (Mem)

Michelle PERETZ, respondent,

v.Zhenjun XU, appellant, et al., defendant.

2021–01006

Index No. 4558/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 1, 2022

May 4, 2022

Nancy L. Isserlis, Long Island City, NY (The Zweig Law Firm, P.C. [Jonah S. Zweig ], of counsel), for appellant.

Dell & Dean, PLLC, Garden City, NY (Joseph G. Dell and Mischel & Horn, P.C. [Scott T. Horn and Andrew J. Fisher ], of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Zhenjun Xu appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated January 5, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for leave to reargue her opposition to the prior motion of the defendant Zhenjun Xu for summary judgment dismissing the complaint insofar as asserted against him, which had been granted in an order of the same court (Johnny Lee Baynes, J.) dated January 23, 2020, and, upon reargument, in effect, vacated that portion of the order dated January 23, 2020, and thereupon denied that defendant's prior motion.

ORDERED that the order dated January 5, 2021, is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was for leave to reargue her opposition to the prior motion of the defendant Zhenjun Xu for summary judgment dismissing the complaint insofar as asserted against him is denied, and so much of the order dated January 23, 2020, as granted that defendant's prior motion is reinstated.

The plaintiff commenced this action to recover damages for injuries she allegedly sustained as a passenger in a vehicle operated by the defendant Zhenjun Xu (hereinafter the driver). The driver moved for summary judgment dismissing the complaint insofar as asserted against him based upon the emergency doctrine, in light of his deposition testimony and video footage from a dashboard camera demonstrating that his vehicle was suddenly cut off by another vehicle and that he applied the brakes and swerved to avoid a collision. In an order dated January 23, 2020, the Supreme Court granted the motion.

Thereafter, the plaintiff moved, inter alia, for leave to reargue her opposition to the driver's prior motion. In an order dated January 5, 2021, the Supreme Court, inter alia, granted that branch of the plaintiff's motion and, upon reargument, in effect, vacated that portion of the prior order which granted the driver's prior motion, and thereupon denied that prior motion. The driver appeals.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" ( CPLR 2221[d][2] ). " ‘Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision’ " ( E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 654, 828 N.Y.S.2d 212, quoting Carrillo v. PM Realty Group, 16 A.D.3d 611, 611, 793 N.Y.S.2d 69 [alterations omitted]; see Vanderbilt Brookland, LLC v. Vanderbilt Myrtle, Inc., 147 A.D.3d 1106, 1108–1109, 48 N.Y.S.3d 433 ). However, "a motion for leave to reargue ‘is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those...