FORBES v. 945134 (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about January 16, 2024, which, to the extent appealed from, granted plaintiff's motion for leave to renew defendants' motion to dismiss plaintiff's complaint pursuant to CPLR 3211(a)(5), (7), and 3212 and, upon renewal, reinstated plaintiff's state and federal claims for malicious prosecution as against defendants the City of New York, Detective Shane Rogers, and Police Officer Anthony Batista, unanimously affirmed, without costs.

Plaintiff moved for renewal based on a recently obtained affidavit from a nonparty witness who averred that her prior testimony before the grand jury and later at plaintiff's criminal trial had been coerced by the police and fabricated.  A party seeking renewal ordinarily must show that they made diligent efforts to obtain the evidence now relied upon and provide a reasonable justification for failing to include it in the prior motion (CPLR 2221[e][2], [3];  see e.g. People v. Adams, 219 A.D.3d 1178, 1181–1182, 196 N.Y.S.3d 395 [1st Dept. 2023];  Luna v. Port Auth. of N.Y. & N.J., 21 A.D.3d 324, 325–326, 800 N.Y.S.2d 170 [1st Dept. 2005]).  Courts also “have discretion to relax this requirement and to grant such a motion in the interest of justice” (Matter of Pasanella v. Quinn, 126 A.D.3d 504, 505, 5 N.Y.S.3d 413 [1st Dept. 2015], quoting Mejia v. Nanni, 307 A.D.2d 870, 871, 763 N.Y.S.2d 611 [1st Dept. 2003]).  “Indeed, this Court has held that even if the rigorous requirements for renewal are not satisfied, such relief may still be granted so as not to defeat substantive fairness” (Rancho Santa Fe Assn. v. Dolan–King, 36 A.D.3d 460, 461, 829 N.Y.S.2d 39 [1st Dept. 2007];  see also Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377, 720 N.Y.S.2d 487 [1st Dept. 2001]).

Although plaintiff's justification for failing to include a statement from the witness with its prior motion was conclusory, Supreme Court's decision to grant the motion was nevertheless proper under the circumstances (see Matter of Pasanella, 126 A.D.3d at 505, 5 N.Y.S.3d 413;  Rancho Santa Fe Assn., 36 A.D.3d at 461, 829 N.Y.S.2d 39).  Contrary to defendants' argument that plaintiff should have timely obtained the affidavit, his failure to do so was not “solely attributable to [his] own lack of diligence” (Matter of Chartier [Cameo House Owners, Inc.], 254 A.D.2d 14, 15, 677 N.Y.S.2d 785 [1st Dept. 1998];  see also Carter–Clark v. Random House, Inc., 17 A.D.3d 241, 242, 793 N.Y.S.2d 394 [1st Dept. 2005]).  At the criminal trial, the witness denied on cross-examination that she had been coerced by NYPD personnel to give false testimony.  There is nothing in the record to indicate that plaintiff should have anticipated that the witness would later disavow that statement.

We have considered the parties' remaining arguments and find them unavailing.