You are here: / / DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN...
, ,

DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff:

“A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought” … . …

The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant’s motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination … . Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff’s prior opposition, were sufficient to determine the motion …. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 2023 NY Slip Op 06352, Second Dept 12-13-24

Practice Point: The motion to renew presented new facts and a reasonable justification for failing to present those facts in the prior motion. The motion should have been granted.

 

You might also like
ARBITRATION HEARING HELD ON A SUNDAY VIOLATED THE JUDICIARY LAW, AWARD VACATED.
JUDGE’S SUA SPONTE DISMSSAL OF THE COMPLAINT IN THIS FORECLOSURE ACTION DEPRIVED PLAINTIFF OF NOTICE AND A CHANCE TO BE HEARD, A VIOLATION OF DUE PROCESS (SECOND DEPT).
SUPREME COURT WAS WITHOUT POWER TO DIRECT DISMISSAL OF THE FORECLOSURE ACTION FOR FAILURE TO PROSECUTE BECAUSE A 90-DAY NOTICE HAD NOT BEEN SERVED (SECOND DEPT).
FAILURE TO DISCLAIM BASED UPON AN EXCLUSION DOES NOT GIVE RISE TO COVERAGE WHICH DOES NOT EXIST.
THE COMPUTATIONS IN THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WERE BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
IN THIS TRAFFIC ACCIDENT CASE, THE PASSENGER IN PLAINTIFF’S CAR EXECUTED A RELEASE IN FAVOR OF PLAINTIFF-DRIVER; DEFENDANT’S COUNTERCLAIM FOR CONTRIBUTION FROM PLAINTIFF FOR ANY INJURY SUFFERED BY THE PASSENGER SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
PLAINTIFF HOMEOWNERS’ ACTION AGAINST THE INSURER FOR BREACH OF CONTRACT, FRAUD AND NEGLIGENCE SHOULD HAVE BEEN DISMISSED; PLAINTIFF ACKNOWLEDGED THE HOME WAS VACANT WHEN THE POLICY WAS PURCHASED AND AT THE TIME OF THE FIRE AND THE POLICY EXCLUDED COVERAGE FOR VACANT PROPERTY (SECOND DEPT).
THE DEFECT, A PROTRUDING BOLT UNDER THE HANDRAIL IN A STAIRWAY, WAS TRIVIAL AND NONACTIONABLE, THE $650,000 VERDICT SHOULD HAVE BEEN SET ASIDE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

​PLAINTIFF’S FIRST EMPLOYMENT DISCRIMINATION COMPLAINT WAS DISMISSED... THE DOCUMENTS RELIED UPON FOR THE REFEREE’S REPORT WERE LISTED BUT NOT...