X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

The following e-filed papers read herein: NYSCEF Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed   46-54 Opposing Affidavits (Affirmations)  55-56 Affidavits/ Affirmations in Reply       58 Other Papers: Affidavits/Affirmations in Support DECISION AND ORDER Plaintiff MICHAEL LENNON moves by Notice of Motion seq. no. 003, pursuant to CPLR §2221, for leave to renew and reargue Defendant’s motion for summary judgment seq. no. 001, which was granted by this Court after oral arguments on February 7, 2024. A motion for leave to renew must either be “based upon new facts not offered on the prior motion” that would change the prior decision or must “demonstrate that there has been a change in the law that would change the prior determination[.]” The movant must also provide reasonable justification for the failure to present such new facts or law on the prior motion. N.Y. C.P.L.R. 2221(e) (McKinney); see Elder v. Elder, 21 A.D.3d 1055, 802 N.Y.S.2d 457; Matter of Progressive Northeastern Ins. Co. v. Frenkel, 8 A.D.3d 390, 391, 777 N.Y.S.2d 652; Matter of Brooklyn Welding Corp. v. Chin, 236 A.D.2d 392, 653 N.Y.S.2d 631); Korman v. Bellmore Pub. Schools, 879 N.Y.S.2d 194, 196-97 (N.Y. App. Div. 2d Dept. 2009). At oral argument on September 25, 2024, Plaintiff’s counsel admitted, that no new facts are being offered that would change the prior determination. As such, the portion of Plaintiff’s motion seeking leave to renew motion seq. no. 001 is denied. A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion[.]” N.Y. C.P.L.R. 2221(d)(2) (McKinney). Motions for leave to reargue are within the discretion of the court and are “ not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented[.]” McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75; see Jaspar Holdings, LLC v. Gotham Trading Partners # 1, LLC, 186 A.D.3d 582, 584, 130 N.Y.S.3d 19; Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., 178 A.D.3d at 773, 111 N.Y.S.3d 898; Woody’s Lbr. Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 593, 817 N.Y.S.2d 391); Emigrant Bank v. Kaufman, 203 N.Y.S.3d 363, 365-66 (N.Y. App. Div. 2d Dept. 2024). In granting Defendant’s motion for summary judgment seq. no. 001, Plaintiff argues that the Court misapprehended Second Department case law analogous to the facts of this matter which was initially offered by Plaintiff in opposition to the summary judgment motion. This court agrees as such, the portion of Plaintiff’s motion seq. no. 003 seeking leave to reargue Defendant’s motion for summary judgment seq. no. 001 is granted. Upon reargument, Defendant failed to establish prima facie entitlement to judgment as a matter of law and therefore, Defendant’s motion seq. no. 001 for summary judgment is denied. To succeed on a motion for summary judgment and dismiss a complaint, defendants cannot simply point to gaps in the plaintiff’s case to satisfy their burden. They must affirmatively demonstrate the merits of their claim or defense by submitting evidentiary proof in admissible form. See Vanderhurst v. Nobile, 13 N.Y.S.3d 231, 232 (N.Y. App. Div. 2d Dept. 2015); Collado v. Jiacono, 6 N.Y.S.3d 116, 118 (N.Y. App. Div. 2d Dept. 2015); Feldberg v. Skorupa, 57 N.Y.S.3d 212, 213 (N.Y. App. Div. 2d Dept. 2017). In support of their summary judgment motion, Defendant BUDGET TRUCK RENTAL, LLC argued that Plaintiff could not establish a prima facie case of liability because they could not prove Defendant owned, or was operating, the offending vehicle at the time of the motor vehicle accident at the center of this case. In making this argument, Defendant relied on deposition transcripts to highlight alleged deficiencies in Plaintiff’s case. This is insufficient evidence to shift the burden from the Defendant on a motion for summary judgment. Defendant did not affirmatively offer any evidence in admissible form to demonstrate the absence of material issues of fact, and entitlement to judgment as a matter of law based on those facts. Therefore, Defendant’s motion for summary judgment seq. no. 001 is denied. Accordingly, it is hereby ORDERED that the portion of Plaintiff MICHAEL LENNON’s motion seq. no. 003 for leave to renew Defendant’s motion for summary judgment seq. no. 001, is DENIED; and it is further, ORDERED that the portion of Plaintiff MICHAEL LENNON’s motion seq. no. 003 for leave to reargue Defendant’s motion for summary judgment seq. no. 001 is GRANTED; and it is further, ORDERED that upon reargument, Defendant BUDGET TRUCK RENTAL, LLC’s motion seq. no. 001 for summary judgement is DENIED This constitutes the decision and order of the Court. Dated: October 9, 2024

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
November 07, 2024
Orlando, FL

This event shines a spotlight on the individuals, teams, projects and organizations that are changing the financial industry.


Learn More
November 06, 2024 - November 07, 2024
Orlando, FL

BTI provides leading tax professionals from financial institutions with unmatched tools and resources.


Learn More
November 13, 2024
New York, NY

Honoring outstanding legal achievements focused at the national level, largely around Big Law and in-house departments.


Learn More

Insurance defense firm located downtown Manhattan seeks an attorney with 3+ years experience to join our firm. We are a medium size insuran...


Apply Now ›

Description: Fox Rothschild LLP has an opening in the Seattle office for an associate in the Taxation & Wealth Planning Department. The ...


Apply Now ›

Description: Fox Rothschild LLP has an opening in the San Francisco, CA office for an associate in our Labor & Employment Department. Th...


Apply Now ›