Galisia v. Espinal , 149 A.D.3d 544 ( 2017 )

Galisia v Espinal (2017 NY Slip Op 02934)

Galisia v Espinal

2017 NY Slip Op 02934

Decided on April 18, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 18, 2017
Sweeny, J.P., Richter, Andrias, Webber, Gesmer, JJ.

3748 309859/12

[*1]Isidro Galisia, Plaintiff-Appellant,

v

Juan E. Espinal, Defendant-Respondent.

Woods Lonergan & Read, PLLC, New York (Andrew S. Read of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered April 4, 2016, which, to the extent appealable, denied plaintiff's motion to renew defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly denied plaintiff's motion to renew, which was based on uncertified emergency and hospital records indicating that plaintiff had suffered a fracture. Plaintiff failed to offer a reasonable justification for not having submitted the records on the prior motion (see CPLR 2221[e][3]). Although plaintiff argued that he had mistakenly testified that he had been transported to Lincoln Hospital, the bill of particulars clearly stated the correct hospital.

"Renewal is not available as a second chance' for parties who have not exercised due diligence in making their first factual presentation" (Chelsea Piers Mgt. v Forest Elec. Corp ., 281 AD2d 252 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK