New York Supreme and/or Appellate Courts Appellate Division, First Department
September 25, 2012
CHRISTINA LAOURDAKIS, ET AL.,
ROBERTO TORRES, DEFENDANT-RESPONDENT , FELICIANO MENDEZ, ET AL., DEFENDANTS.
Laourdakis v Torres
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on September 25, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Richter, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered June 8, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion to renew defendant Torres' motion to dismiss the complaint as against him as abandoned, unanimously modified, on the law, to grant plaintiff Christina Laourdakis' motion to renew and, upon renewal, to deny the motion to dismiss her claims, and otherwise affirmed, without costs.
Although plaintiffs' motion to renew was based on information that could have been presented earlier, courts have discretion to consider such evidence in the interest of justice (see Joseph v Board of Educ. of the City of N.Y., 91 AD3d 528, 529 [1st Dept 2012]; Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]). Here, the affidavit of merit submitted on renewal, together with counsel's affirmation explaining the delay in seeking a default, warrants a grant of renewal and denial of the motion to dismiss as to Christina (see Smith v Arce, 78 AD3d 612 [1st Dept 2010]; LaValle v Astoria Constr. & Paving Corp., 266 AD2d 28 [1st Dept 1999]). The evidence that plaintiffs' attorney had continuing oral and written communications with defendant's insurer concerning this serious injury action, "while not the equivalent of ongoing negotiations, sufficiently indicates that plaintiffs did not intend to abandon the action," and provided a reasonable excuse under the circumstances (Hinds v 2461 Realty Corp., 169 AD2d 629, 632 [1st Dept 1991]; see Corbin v Wood Pro Installers, 184 AD2d 234 [1st Dept 1992]). Moreover, there has been no showing of prejudice to defendant (see LaValle, 266 AD2d at 28).
However, plaintiffs did not provide an affidavit of merit or other evidence sufficient to warrant reinstatement of plaintiff Margarita's serious injury claims (see Utak v Commerce Bank Inc., 88 AD3d 522, 522-523 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 25, 2012
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