RENNA v. Chi Kin Leung, et al., respondents. (2005)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated May 10, 2004, which denied their motion for leave to renew that branch of a prior motion of the defendants Chi Kin Leung and Chi K. Leung which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d), which had been granted in an order of the same court dated July 14, 2003.

ORDERED that the order is affirmed, with costs.

 A motion for leave to renew must be “based upon new facts not offered on the prior motion that would change the prior determination,” and must set forth a “reasonable justification for the failure to present such facts on the prior motion” (see CPLR 2221[e];  Yarde v. New York City Tr. Auth., 4 A.D.3d 352, 771 N.Y.S.2d 185;  Riccio v. DePeralta, 274 A.D.2d 384, 711 N.Y.S.2d 17).   While it may be within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion (see J.D. Structures v. Waldbaum, 282 A.D.2d 434, 723 N.Y.S.2d 205;  Cronwall Equities v. International Links Dev. Corp., 255 A.D.2d 354, 679 N.Y.S.2d 676), a motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (see Rubinstein v. Goldman, 225 A.D.2d 328, 329, 638 N.Y.S.2d 469;  see also O'Dell v. Caswell, 12 A.D.3d 492, 784 N.Y.S.2d 603;  Hart v. City of New York, 5 A.D.3d 438, 772 N.Y.S.2d 574;  Carota v. Wu, 284 A.D.2d 614, 725 N.Y.S.2d 453).   The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to renew as they failed to offer a reasonable justification as to why the allegedly new facts were not submitted earlier (see Daria v. Beacon Capital Co., 299 A.D.2d 312, 749 N.Y.S.2d 79;  Malik v. Campbell, 289 A.D.2d 540, 735 N.Y.S.2d 793;  Doumanis v. Conzo, 265 A.D.2d 296, 696 N.Y.S.2d 201).   In any event, those facts would not have changed the prior determination.