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Todd Brooks v. Matthew Jennings and Siyli Kuang

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


August 16, 2011

TODD BROOKS,
APPELLANT,
v.
MATTHEW JENNINGS AND SIYLI KUANG,
RESPONDENTS.

Brooks v Jennings

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2011

PRESENT: GOLIA, J.P., PESCE and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered June 25, 2009. The order denied plaintiff's motion for leave to reargue and renew a prior motion by defendant Siyli Kuang and a prior motion by defendant Matthew Jennings for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order as denied the branch of plaintiff's motion which was for leave to reargue the prior motions is dismissed; and it is further,

ORDERED that so much of the order as implicitly denied the branch of plaintiff's motion which was for leave to renew is affirmed, without costs.

Plaintiff commenced this action to recover for serious injuries allegedly sustained in a motor vehicle accident on July 6, 2004. Each defendant separately moved for summary judgment dismissing the complaint on the ground that plaintiff failed to meet the serious injury threshold requirement of Insurance Law § 5102 (d). Plaintiff opposed the motions, and, by order entered March 30, 2009, the Civil Court granted defendants' motions, finding that defendants had made a prima facie showing of their entitlement to judgment as a matter of law, and that plaintiff had failed to come forward with admissible medical evidence based upon a recent examination. Plaintiff subsequently moved, pursuant to CPLR 2221, for leave to reargue and renew the prior motions, proffering, among other things, an affirmed medical report from a doctor who had previously submitted an unaffirmed report and a Workers' Compensation Board billing form from a second doctor, whose signature appeared under the words "affirmed under penalty of perjury." The Civil Court denied plaintiff's motion, construing it as solely one seeking leave to reargue. This appeal by plaintiff ensued.

Plaintiff's appeal from so much of the order as denied the branch of his motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying a motion for leave to reargue (see Bermudez v City of New York, 66 AD3d 724 [2009]; Malik v Campbell, 289 AD2d 540 [2001]).

In support of the branch of his motion which was for leave to renew, plaintiff needed to proffer either new facts which were unavailable at the time of the prior motions or a reasonable justification for the failure to have presented such facts on the prior motions (see CPLR 2221 [e]; Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883 [2010]). Plaintiff failed to do either (see Caraballo v Kim, 63 AD3d 976 [2009]; Dinten-Quiros v Brown, 49 AD3d 588 [2008]; Madison v Tahir, 45 AD3d 744 [2007]). Under these circumstances, the Civil Court did not improvidently exercise its discretion in implicitly denying the branch of plaintiff's motion which sought leave to renew.

Golia, J.P., Pesce and Rios, JJ., concur.

Decision Date: August 16, 2011

20110816

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