CITY OF NEW YORK v. Insurance Company of North America, respondent. (2005)

In an action, inter alia, for a judgment declaring that the defendants St. Paul Fire and Marine Insurance Company, Northbrook Property & Casualty Insurance Company, and Insurance Company of North America are obligated to defend and indemnify the plaintiff in an underlying action entitled Pastuizaca v. City of New York, pending in the Supreme Court, Kings County, under Index No. 4441/96, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated August 2, 2004, which, among other things, in effect, denied that branch of its motion which was for leave to renew the cross motion of the defendant Insurance Company of North America for summary judgment declaring that it is not obligated to defend and indemnify the plaintiff in the underlying action, which was granted in a prior order of the same court dated December 17, 2003.

ORDERED that the order is affirmed, with costs.

 A motion for leave to renew must be based upon new or additional facts which, although in existence at the time of the original motion, were not made known to the party seeking renewal, and therefore, were not known to the court (see CPLR 2221[e];  Morrison v. Rosenberg, 278 A.D.2d 392, 717 N.Y.S.2d 354).  “Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” (Matter of Orange & Rockland Utils. v. Assessor of Town of Haverstraw, 304 A.D.2d 668, 669, 758 N.Y.S.2d 151;  see Stone v. Bridgehampton Race Circuit, 244 A.D.2d 403, 665 N.Y.S.2d 554).

 In support of its motion, the plaintiff submitted evidence that was not new information, but merely cumulative with respect to the factual material submitted in connection with the original cross motion.   Accordingly, the Supreme Court properly, in effect, denied that branch of the plaintiff's motion which was for leave to renew the cross motion of the defendant Insurance Company of North America for summary judgment.

The plaintiff's remaining contentions are without merit.