MADISON v. TAHIR (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated June 28, 2006, which denied her motion for leave to renew her opposition to the defendants' prior motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order dated December 16, 2005.

ORDERED that the order is affirmed, with costs.

In an order dated December 16, 2005, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  The plaintiff appealed from that order.   That appeal, however, was dismissed for failure to prosecute by decision and order on motion of this Court dated September 11, 2006.

The plaintiff also moved for leave to renew her opposition to the defendants' motion.   The Supreme Court denied her motion, and we affirm.

In support of her motion for leave to renew, the plaintiff needed to proffer both new facts not presented on the prior motion that would warrant denial of the defendants' motion for summary judgment dismissing the complaint, and a reasonable justification for the failure to have presented such facts on the prior motion (see CPLR 2221[e][2], [3];  St. Claire v. Gaskin, 295 A.D.2d 336, 337, 743 N.Y.S.2d 529).   In addition, review in this Court is further limited by the dismissal of the plaintiff's appeal from the order dated December 16, 2005.

 As a general rule, we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution, although we have inherent jurisdiction to do so (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86;  Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575;  St. Claire v. Gaskin, 295 A.D.2d 336, 337, 743 N.Y.S.2d 529).

 The plaintiff has not demonstrated any basis for the exercise of such discretion.   Given this limited review, we need not consider the issue raised on the instant appeal, as that issue could have been raised on the appeal from the order dated December 16, 2005 (see Gihon, LLC v. 501 Second St., LLC, 29 A.D.3d 630, 814 N.Y.S.2d 729;  Hepner v. New York City Tr. Auth., 27 A.D.3d 418, 419, 810 N.Y.S.2d 663).   In any event, the plaintiff failed to demonstrate a reasonable justification for her failure to have proffered, in opposition to the defendant's motion for summary judgment dismissing the complaint, the alleged new facts presented on her motion for leave to renew.