Acevedo v. Nurmamatov

Acevedo v Nurmamatov (2022 NY Slip Op 03961)

Acevedo v Nurmamatov

2022 NY Slip Op 03961

Decided on June 16, 2022

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 and Entered: June 16, 2022
Before: Acosta, P.J., Kapnick, Friedman, Mendez, Higgitt, JJ.
Index No. 155758/19 Appeal No. 16143 Case No. 2021-04299

Lerner, Arnold & Winston, LLP, New York (Jacob L. Levine of counsel), for appellant.

Law Office of Kevin J. Philbin, New York (Rosemary S. Ortiona of counsel), for respondent.

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered February 9, 2022, which denied plaintiff's motion for leave to renew defendant-respondent's motion to sever the claims as asserted against her, unanimously affirmed, without costs.

The court providently exercised its discretion in denying leave to renew. Plaintiff failed to provide a reasonable justification for his failure to assert or to present, in opposing the motion to sever, his doctor's report dated August 28, 2018, showing that the September 22, 2017 accident exacerbated the injuries that he sustained in the May 13, 2017 accident (CPLR 2221[e][3]). These facts were previously known to plaintiff, as the report pre-dated the filing of the motion for severance, and plaintiff was certainly aware at that time that he had an exacerbation claim. Renewal is granted sparingly and "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Gibbs v Kings Harbor Health Servs., LLC, 190 AD3d 586, 587 [1st Dept 2021] [internal quotation marks omitted]).

We have considered plaintiff's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 16, 2022