Friday, February 28, 2014

First Department Holds That Successful Party On Motion Is Not Entitled To Renewal

In Fernandez v. Moskowitz, the defendants were denied summary judgment and appealed. The First Department reversed, finding that plaintiff failed to establish his alleged injury. More specifically, the Court found that plaintiff's experts had failed to refute the normal results of the MRIs relied on by defendants' experts or explain plaintiff's early normal development.

Thereafter, plaintiff moved to renew on the basis that the First Department's finding was a "new fact" as considered in CPLR 2221(e)(2), and that he should be allowed to renew the summary judgment motion to proffer the results of a new diagnostic test and expert's affidavit that he argued would have persuaded the First Department to affirm the denial of summary judgment to the defendants (CPLR 2221[e][2]).

In rejecting the plaintiff's argument, the First Department found that, because the motion court had denied defendants' summary judgment motion, plaintiff as the prevailing party was never entitled to seek renewal of that motion (see e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [where the successful party obtained the full relief sought, it has no ground for appeal [or renewal], even if that party disagrees with the particular findings, rationale or the opinion supporting the order below in its favor]). The Court further observed that, because judgment dismissing the complaint had been entered, plaintiff's recourse was to seek to vacate the Court's decision and judgment based on the existence of the new diagnostic test and expert's affidavit (CPLR 5015[a][2]).

No comments:

Post a Comment