Gustavo Adolfo Moreno Rojas, appellant, v. Laser Vision Dr. Dello Russo, respondent. (2026)

Argued—February 19, 2026

DECISION & ORDER

A/

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered November 28, 2023.  The order denied the plaintiff's motion, in effect, for leave to reargue and renew his opposition to the defendant's prior motion pursuant to CPLR 3211(a) to dismiss the complaint, which had been granted in an order of the same court entered October 2, 2023.

ORDERED that the appeal from so much of the order entered November 28, 2023, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order entered November 28, 2023, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

In July 2023, the plaintiff commenced this action against the defendant to recover damages for medical malpractice.  In August 2023, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, for lack of personal jurisdiction due to improper service.  The plaintiff opposed the motion and submitted an affidavit of service and his own affidavit.  Both affidavits attested to service via substituted service at the defendant's home to a person of suitable age and discretion but did not include any information regarding the required service by mail.

In an order entered October 2, 2023, the Supreme Court granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, among other things, for lack of personal jurisdiction due to improper service.  The plaintiff thereafter moved, in effect, for leave to reargue and renew his opposition to the defendant's prior motion.  In an order entered November 28, 2023, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

A motion for leave to renew is addressed to the sound discretion of the Supreme Court (see Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 222 AD3d 721, 723;  Kugler v. Kugler, 174 AD3d 876, 877).  “A motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’ ” (Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 222 AD3d at 723, quoting CPLR 2221[e][2];  see Cook v. SI Care Ctr., 238 AD3d 1109, 1110) “and ‘shall contain reasonable justification for the failure to present such facts on the prior motion’ ” (Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 222 AD3d at 723, quoting CPLR 2221[e][3] ).  Here, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, for lack of personal jurisdiction, as the plaintiff failed to demonstrate that new facts, submitted in the form of photographs, could not have been presented in opposition to the defendant's prior motion or that the new facts would have changed the prior determination (see Aikhoje v. City of New York, 235 AD3d 610, 613).

The parties' remaining contentions need not be reached in light of our determination.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court