SUN WHAN LEE v. DOE (2008)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated July 19, 2007, as granted that branch of the plaintiff's motion which was for leave to renew her opposition to their prior motion for summary judgment dismissing the complaint, which had been granted in an order dated April 13, 2007, and, upon renewal, denied their motion for summary judgment.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for leave to renew is denied.

The plaintiff commenced this action to recover damages for personal injuries sustained by her when the bus in which she was riding allegedly stopped suddenly and she fell to the floor.

 “In general, 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” (Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 840 N.Y.S.2d 817).   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 Renna v. Gullo, 19 A.D.3d 472, 797 N.Y.S.2d 115).   In this case, the plaintiff failed to set forth a reasonable justification for the failure to present the “new facts” on the original motion.   In addition, the “new facts” offered by the plaintiff consisted of nothing more than a characterization of the stop as “violent” (see Urquhart v. New York City Tr. Auth., 85 N.Y.2d 828, 830, 623 N.Y.S.2d 838, 647 N.E.2d 1346).   Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendants' prior motion for summary judgment.

The plaintiff's remaining contention is without merit.