McNerney v. Fundalinski

Feb 8, 2008
Versions:48 A.D.3d 1256
851 N.Y.S.2d 813

Dennis McNerney, Appellant, v Sandra Fundalinski et al., Respondents. [851 NYS2d 813]—Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered January 30, 2007 in a personal injury action. The order granted the motion of defendants for leave to renew their summary judgment motion and, upon renewal, dismissed the complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motions are denied and the complaint is reinstated.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained in a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and plaintiff cross-moved for partial summary judgment on, inter alia, the issue of serious injury. Supreme Court denied the motion and cross motion and, several months later, defendants moved for leave to renew their motion for summary judgment. We conclude that the court erred in granting the motion for leave to renew and, upon granting renewal, granting defendants’ motion for summary judgment dismissing the complaint. “A motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). Defendants failed to submit any new facts in support of their motion, nor did they demonstrate that there was a change in the law (see Scott v University of Rochester, 1 AD3d 945 [2003]; see also Matter of Solow Bldg. Co., LLC v Morgan Guar. Trust Co. of N.Y., 30 AD3d 273, 274 [2006], lv dismissed 7 NY3d 864 [2006]; cf. NYCTL 1999-1 Trust v 114 Tenth Ave. Assoc., Inc., 44 AD3d 576, 577 [2007]). Present—Hurlbutt, J.P., Smith, Centra, Lunn and Fahey, JJ.