APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
April 5, 2011
DEVONSHIRE SURGICAL FACILITY CARNEGIE HILL ORTHOPEDIC SERVICES,
P.C. AND ALLEN C. CHAMBERLIN, M.D., A/A/O TERESA DELAROSA,
AMERICAN TRANSIT INSURANCE COMPANY,
Plaintiffs appeal from so much of an order of the Civil Court of the City of New York, New York County (Jose A. Padilla, Jr. J.), dated April 22, 2010, as denied their motion, in effect, for leave to renew their motion for summary judgment, which was denied by an order (same Court and Judge), dated October 4, 2005.
Devonshire Surgical Facility Carnegie Hill Orthopedic Servs., P.C. v American Tr. Ins. Co.
Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 5, 2011
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
Calendar No. 11-010
Order (Jose A. Padilla, Jr., J.), dated April 22, 2010, insofar as appealed from, affirmed, with $10 costs.
Since the plaintiffs' motion was based upon an alleged "change in the law that would change the prior determination," it was, in actuality, a motion for renewal (CPLR 2221[e]; see Daniels v Millar El. Indus., Inc., 44 AD3d 895 ). While there is no time limitation in which to make a motion for leave to renew (see CPLR 2221[e]; Ramos v City of New York, 61 AD3d 51, 54 , app withdrawn 12 NY3d 922 ; Luna v Port Auth. of NY & N.J., 21 AD3d 324, 326 ), plaintiffs failed to demonstrate that their delay in seeking renewal for over four years was, in fact, due to a change in the law.
Contrary to plaintiffs' contention, appellate authority in their favor long preceded the motion court's decision in 2005 (see Presbyterian Hosp. in City of NY v Aetna Cas. & Sur. Co., 233 AD2d 433 , lv dismissed 89 NY2d 1030 ; Quality Med. Healthcare, P.C., v Lumberman's Mut. Cas. Co., 2002 NY Slip Op 50098[U] ), and the case cited by plaintiffs does not represent a change in decisional law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319 n 5 ). Moreover, plaintiffs failed to present a reasonable justification for their lengthy four-year delay in seeking renewal (see Levy v New York City Health & Hosps. Corp., 40 AD3d 359, 360 , lv dismissed 9 NY3d 1001 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concurI concurI concur Decision Date: April 05, 2011
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