CPLR § 2001 Mistakes, omissions, defects & irregularities
CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
Ayoub v Ayoub, 2009 NY Slip Op 05164 (App. Div., 1st, 2009)
The preliminary conference order indicated that the issue of equitable distribution was resolved and that all financial and property issues except for child support were resolved by the parties' prenuptial agreement. In her motion to modify the preliminary conference order, plaintiff did not demonstrate good cause (see 22 NYCRR 202.16[f][3]) to raise the issue of equitable distribution of the marital residence. Indeed, contrary to her contention, the prenuptial agreement is clear that the only property subject to equitable distribution is that titled in joint names, of which there is none. While the agreement contains a separate section dealing with a marital residence, the plain language of paragraph 4 of that section provides for equitable distribution only if "the Marital Residence is purchased as Jointly Owned Property."
Nor is relief available under CPLR 2001, since the waiver of the issue of equitable distribution in the preliminary conference order was not simply a slight mistake (see People ex rel. Di Leo v Edwards, 247 App Div 331 [1936]). Similarly, no relief is available under CPLR 2221. In her motion papers, plaintiff did not even assert that the preliminary conference order reflected a misapprehension of law or facts. Furthermore, the court correctly found that plaintiff's hiring of new counsel did not present a new fact permitting her to revisit the issues resolved in the preliminary conference order
Caraballo v Kim, 2009 NY Slip Op 05279 (App. Div., 2nd, 2009)
The medical report of the injured plaintiff's treating chiropractor, Dr. Alan C. Berger, dated May 8, 2006, did not constitute evidence competent to oppose the defendants' motion because it was unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).
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The affirmation of Dr. Stuart I. Springer, the injured plaintiff's treating physician, also failed to raise a triable issue of fact...
The affirmed magnetic resonance imaging reports of Dr. Mark Shapiro and Dr. Marc Liebeskind merely revealed the existence of disc bulges at L3-4 and L4-5, a disc herniation at L5-S1, possible tears in the posterior horns of the medial menisci of the right and left knees, and a possible tear (rupture) of the anterior cruciate ligament in the left knee. This Court has held that a herniated or bulging disc, or even a tear in a tendon, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Washington v Mendoza, 57 AD3d 972; Cornelius v Cintas Corp., 50 AD3d 1085, 1087; Shvartsman v Vildman, 47 AD3d 700; Tobias v Chupenko, 41 AD3d 583). A tendon is defined as "[t]he cord of tough connective tissue which forms the end of a muscle and which connects the muscle to the bone" (5-T-TG Attorneys' Dictionary of Medicine [2005 ed] at 974). Tendons "are bands of fibrous connective tissue" (5-15A Attorneys' Textbook of Medicine [3d ed] at 15A.10). A ligament is defined as "[a] band of tough but flexible tissue which serves to connect bones (as in the formation of a joint), to hold organs in place, etc." (3-L Attorneys' Dictionary of Medicine [2005 ed] at 2302). Ligaments, like tendons, are "bands of tough, fibrous connective tissue" (4-13 Attorneys' Textbook of Medicine [3d ed] at 13.10). Thus, injuries involving tendons and ligaments must be treated similarly under Insurance Law § 5102(d). Evidence of the extent and duration of any alleged limitation arising from injury to the plaintiff's discs or ligaments was clearly lacking here. The deposition testimony of the injured plaintiff was insufficient to supply such evidence (see Washington v Mendoza, 57 AD3d 972).
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The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to renew their opposition to the defendants' motion for summary judgment (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472). A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). 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 original motion (see Ramirez v Khan, 60 AD3d 748; J.D. Structures v Waldbaum, 282 AD2d 434; Cronwall Equities v International Links Dev. Corp., 255 AD2d 354), 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'" (Renna v Gullo, 19 AD3d at 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329; see Ramirez v Khan, 60 AD3d 748; O'Dell v Caswell, 12 AD3d 492; Hart v City of New York, 5 [*3]AD3d 438; Carota v Wu, 284 AD2d 614). In this case, the plaintiffs failed to provide reasonable justification for the failure to include the findings in the supplemental affidavit of Dr. Berger on the original motion (see Ramirez v Khan, 60 AD3d 748; Renna v Gullo, 19 AD3d 472).
The bold is mine.
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