

Ayala v Gonzalez (2015 NY Slip Op 05138)





Ayala v Gonzalez


2015 NY Slip Op 05138


Decided on June 17, 2015


Appellate Division, Second Department


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 June 17, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
BETSY BARROS, JJ.


2014-04007
 (Index No. 15830/12)

[*1]Rosa Ayala, etc., respondent, 
vPatricia Ramona Gonzalez, etc., et al., defendants, Amsterdam Medical Practice, PLLC, appellant.


Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg and Thomas A. Mobilia of counsel), for appellant.
Peña & Kahn, PLLC, Bronx, N.Y. (Diane Welch Bando of counsel), for respondent.

DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice and wrongful death, the defendant Amsterdam Medical Practice, PLLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated February 14, 2014, as denied that branch of its motion which was pursuant to CPLR 2221(e) for leave to renew its prior motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it, which had been denied in an order of the same court dated February 7, 2013.
ORDERED that the order dated February 14, 2014, is affirmed insofar as appealed from, with costs.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see United Med. Assoc., PLLC v Seneca Ins. Co., Inc., 125 AD3d 959; Ali v Verizon N.Y., Inc., 116 AD3d 722; Okumus v Living Room Steak House, Inc., 112 AD3d 799, 799).
Here, in support of its motion to renew, the defendant Amsterdam Medical Practice, PLLC (hereinafter Amsterdam), submitted exhibits which included an affirmation of its principal, an affidavit of its bookkeeper, an affidavit of its accountant, and its operational agreement. This evidence was available to Amsterdam when it made its prior motion to dismiss the complaint insofar as asserted against it, and Amsterdam failed to set forth a reasonable justification for failing to submit the evidence on the prior motion. Accordingly, the Supreme Court properly denied the branch of its motion seeking leave to renew.
In light of our determination, we need not reach Amsterdam's remaining contentions.
RIVERA, J.P., DICKERSON, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


