The Second Department determined that law office failure was properly deemed an adequate ground for a motion to renew based on evidence which could have been presented to support the original motion. The Second Department further determined that, upon renewal, the denial of defendant’s motion to dismiss for failure to timely file a complaint after service of the demand for a complaint was proper. The court noted the criteria for granting a motion to renew is flexible:
“Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion” … . What is considered a “reasonable justification” is within the Supreme Court’s discretion … . “Law office failure can be accepted as a reasonable excuse in the exercise of the court’s sound discretion” … .
Here … the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff’s motion which was for leave to renew his opposition to her motion, as the excuse of law office failure presented by the plaintiff was reasonable under the circumstances … .
Furthermore, upon renewal, considering all the circumstances of this case, the Supreme Court providently exercised its discretion in denying the appellant’s motion pursuant to CPLR 3012(b) to dismiss the complaint insofar as asserted against her for failure to serve a timely complaint. The plaintiff proffered a reasonable excuse for his delay in serving the complaint after being served by the appellant with a notice of appearance and demand for a complaint, and established that he had a potentially meritorious cause of action against the appellant … . Castor v Cuevas, 2016 NY Slip Op 01456, 2nd Dept 3-2-16
CIVIL PROCEDURE (LAW OFFICE FAILURE DEEMED ADEQUATE EXCUSE FOR GRANTING A MOTION TO RENEW)/CIVIL PROCEDURE (CRITERIA FOR A MOTION TO RENEW IS FLEXIBLE)/LAW OFFICE FAILURE (MOTION TO RENEW BASED UPON LAW OFFICE FAILURE PROPERLY GRANTED)/RENEW, MOTION TO (CRITERIA FOR GRANTING IS FLEXIBLE)/RENEW, MOTION TO (LAW OFFICE FAILURE DEEMED ADEQUATE GROUND FOR MOTION)