Seegopaul v. MTA Bus Company

210 A.D.3d 715

177 N.Y.S.3d 694

Shamila SEEGOPAUL, appellant,

v.MTA BUS COMPANY, et al., respondents.

2019–09937

Index No. 710920/15

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

Submitted—September 22, 2022

November 2, 2022

Scott Baron & Associates, P.C., Howard Beach, NY, for appellant.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph Risi, J.), entered July 30, 2019. The order denied the plaintiff's motion for leave to renew her opposition to the defendants’ motion for summary judgment dismissing the complaint, which had been granted in an order of the same court dated September 10, 2018.

ORDERED that the order entered July 30, 2019, is affirmed, without costs or disbursements.

The plaintiff allegedly was injured while riding a New York City bus driven by an employee of the New York City Transit Authority. The bus driver stopped the bus abruptly, causing the plaintiff to slide off her seat, resulting in injuries. The Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiff thereafter moved for leave to renew her opposition to the defendants’ motion for summary judgment. In an order entered July 30, 2019, the court denied the plaintiff's motion. The plaintiff appeals.

As a general rule, we do not consider any issue raised on a subsequent appeal that was raised, or could have been raised, in an earlier appeal that was dismissed for lack of prosecution, although we have the inherent jurisdiction to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86 ). The plaintiff previously appealed from an order dated September 10, 2018, granting the defendants’ motion for summary judgment dismissing the complaint, and that appeal was deemed dismissed for failure to prosecute. We decline to exercise our discretion to determine any issues which could have been raised on the prior appeal (see Bray v. Cox, 38 N.Y.2d 350, 354, 379 N.Y.S.2d 803, 342 N.E.2d 575 ; Stallings v. City of New York, 82 A.D.3d 745, 745, 917 N.Y.S.2d 899 ; Man Choi Chiu v. Chiu, 67 A.D.3d 975, 976, 890 N.Y.S.2d 78 ).

The Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion for leave to renew. A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2] ) and shall contain reasonable justification for the failure to present such facts on the prior motion (see id. § 2221[e][3] ). While it may be within the court's discretion to grant leave to renew upon facts known to the moving party at the time of the prior motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Thus, the court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (see Makropoulos v. City of New York, 187 A.D.3d 885, 888, 130 N.Y.S.3d 378 ; Dupree v. Westchester County Health Care Corp., 164 A.D.3d 1211, 1214, 84 N.Y.S.3d 176 ; Caraballo v. Kim, 63 A.D.3d 976, 978–979, 882 N.Y.S.2d 211 ). While law office failure can be accepted as a reasonable excuse in the exercise of the court's sound discretion, the movant must submit supporting facts to explain and justify the failure, and mere neglect is not accepted as a reasonable excuse (see Lanzillo v. 4 World Trade Ctr., LLC, 195 A.D.3d 907, 909, 150 N.Y.S.3d 727 ; Assevero v. Rihan, 144 A.D.3d 1061,...