Michael Lennon, Plaintiff, v. LLC (2024)

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

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. NY C.P.L.R. 2221(e) (McKinney); see Elder v. Elder, 21 AD3d 1055, 802 N.Y.S.2d 457; Matter of Progressive Northeastern Ins. Co. v. Frenkel, 8 AD3d 390, 391, 777 N.Y.S.2d 652; Matter of Brooklyn Welding Corp. v. Chin, 236 AD2d 392, 653 N.Y.S.2d 631); Korman v. Bellmore Pub. Schools, 879 N.Y.S.2d 194, 196—97 (NY 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[.]" NY 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 AD2d 593, 594, 691 N.Y.S.2d 75; see Jaspar Holdings, LLC v. Gotham Trading Partners # 1, LLC, 186 AD3d 582, 584, 130 N.Y.S.3d 19; Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., 178 AD3d at 773, 111 N.Y.S.3d 898; Woody's Lbr. Co., Inc. v. Jayram Realty Corp., 30 AD3d 590, 593, 817 N.Y.S.2d 391); Emigrant Bank v. Kaufman, 203 N.Y.S.3d 363, 365—66 (NY 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 (NY App. Div. 2d Dept. 2015); Collado v. Jiacono, 6 N.Y.S.3d 116, 118 (NY App. Div. 2d Dept. 2015); Feldberg v. Skorupa, 57 N.Y.S.3d 212, 213 (NY 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

Brooklyn, New York

Hon. Joy F. Campanelli, J.S.C.

Joy F. Campanelli, J.