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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.

 

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