TAPIA v. VAN ROSSUM (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated September 5, 2024.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew her motion for summary judgment on the issue of liability against the defendant Olson E. Van Rossum, which had been denied in an order of the same court (Delores J. Thomas, J.) dated July 21, 2023, and, upon reargument, adhered to the original determination in the order dated July 21, 2023.

ORDERED that the order dated September 5, 2024, is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiff commenced this action against, among others, the defendant Olson E. Van Rossum (hereinafter the defendant) to recover damages for personal injuries that she allegedly sustained when she was struck by the defendant's vehicle as she was crossing a street.  The plaintiff moved for summary judgment on the issue of liability against the defendant.  In an order dated July 21, 2023, the Supreme Court denied the plaintiff's motion.  The plaintiff subsequently moved for leave to renew and reargue her motion for summary judgment on the issue of liability against the defendant.  In an order dated September 5, 2024, the court denied that branch of the plaintiff's motion which was for leave to renew, granted that branch of the plaintiff's motion which was for leave to reargue, and, upon reargument, adhered to its original determination.  The plaintiff appeals.

A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2] ) and shall contain reasonable justification for the failure to present such facts on the prior motion (see id. § 2221[e][3];  Groman v. Fleyshmakher, 221 A.D.3d 789, 790, 199 N.Y.S.3d 658).  “The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion” (Ok Sun Chong v. Scheelje, 218 A.D.3d 691, 692, 192 N.Y.S.3d 668 [internal quotation marks omitted];  see Seegopaul v. MTA Bus Co., 210 A.D.3d 715, 716, 177 N.Y.S.3d 694).  Here, the plaintiff failed to offer a reasonable justification for not including the purported new evidence in support of her original motion, and accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew (see Groman v. Fleyshmakher, 221 A.D.3d at 790, 199 N.Y.S.3d 658;  Ok Sun Chong v. Scheelje, 218 A.D.3d at 692, 192 N.Y.S.3d 668).

Upon reargument, the Supreme Court properly adhered to its original determination denying the plaintiff's motion for summary judgment on the issue of liability against the defendant.  “A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74;  see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366).  “To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” (Valerio v. City of New York, 238 A.D.3d 943, 944, 233 N.Y.S.3d 175 [internal quotation marks omitted];  see Rodriguez v. City of New York, 31 N.Y.3d at 312, 76 N.Y.S.3d 898, 101 N.E.3d 366;  Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d at 1034, 83 N.Y.S.3d 74).

Here, the evidence submitted by the plaintiff in support of her motion for summary judgment failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability against the defendant (see Gomez v. City of New York, 186 A.D.3d 1494, 1495, 131 N.Y.S.3d 94).  Accordingly, upon reargument, the Supreme Court properly adhered to its original determination denying the plaintiff's motion for summary judgment on the issue of liability against the defendant regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties' remaining contentions are either without merit or not properly before this Court.

BARROS, J.P., CHAMBERS, CHRISTOPHER and MCCORMACK, JJ., concur.