Opinion
1505 CA 17–00995
02-02-2018
Daniel REDEYE, Plaintiff–appellant, v. PROGRESSIVE INSURANCE COMPANY, Defendant–respondent.
CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF–APPELLANT. HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR DEFENDANT–RESPONDENT.
CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFF–APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (DAN D. KOHANE OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Plaintiff commenced this action against defendant, his motor vehicle liability insurer, seeking supplementary uninsured/underinsured motorist benefits. On a prior appeal, we held that Supreme Court properly granted the motion of defendant for summary judgment seeking, inter alia, to dismiss the complaint ( Redeye v. Progressive Ins. Co., 133 A.D.3d 1261, 19 N.Y.S.3d 645 [4th Dept. 2015], lv denied 26 N.Y.3d 918, 2016 WL 635364 [2016] ). In our decision, we cited, inter alia, Weiss v. Tri–State Consumer Ins. Co., 98 A.D.3d 1107, 951 N.Y.S.2d 191 (2d Dept. 2012), and Supreme Court likewise relied on that case. In June 2016, the Second Department issued its decision in Matter of Government Empls. Ins. Co. v. Sherlock, 140 A.D.3d 872, 875, 32 N.Y.S.3d 635 (2d Dept. 2016) in which it disavowed Weiss to an extent. Shortly thereafter, plaintiff moved pursuant to CPLR 2221(e)(2) for leave to renew and/or pursuant to CPLR 5015(a) to vacate the court's prior order on the ground that Weiss, upon which the court had relied, was no longer good law. The court denied the motion, and we now affirm.
Contrary to plaintiff's contention, the motion insofar as it sought leave to renew was properly denied. CPLR 2221(e) does not impose a time limit on motions for leave to renew, unlike motions for leave to reargue, which must be made before the expiration of the time in which to take an appeal (see CPLR 2221[d][3] ; 5512[a] ). A motion based on a change in the law formerly was considered a motion for leave to reargue, with the same time limit, i.e., before the time to appeal the order expired (see Matter of Huie [Furman], 20 N.Y.2d 568, 572, 285 N.Y.S.2d 610, 232 N.E.2d 642 [1967], rearg. denied 21 N.Y.2d 880, 289 N.Y.S.2d 1029, 236 N.E.2d 500 [1968] ; Glicksman v. Board of Educ./Cent. Sch. Bd. of Comsewogue Union Free Sch. Dist., 278 A.D.2d 364, 365, 717 N.Y.S.2d 373 [2d Dept. 2000] ). Over time, the rule evolved to allow such a motion "where the case was still pending, either in the trial court or on appeal" ( Glicksman, 278 A.D.2d at 365–366, 717 N.Y.S.2d 373 ). The Court of Appeals explained in Huie that denying as untimely a motion for leave to reargue based on a change in the law "might at times seem harsh, [but] there must be an end to lawsuits" ( id. at 572, 285 N.Y.S.2d 610, 232 N.E.2d 642 ).
After the statute was amended in 1999 to specify that a motion based on a change in the law is a motion for leave to renew, courts have nevertheless properly continued to impose a time limit on motions based on a change in law (see Daniels v. Millar El. Indus., Inc., 44 A.D.3d 895, 895, 845 N.Y.S.2d 785 [2d Dept. 2007] ; Matter of Eagle Ins. Co. v. Persaud, 1 A.D.3d 356, 357, 766 N.Y.S.2d 571 [2d Dept. 2003] ; Glicksman, 278 A.D.2d at 366, 717 N.Y.S.2d 373 ). As explained in Glicksman, "there is no indication in the legislative history of an intention to change the rule regarding the finality of judgments" ( id. at 366, 717 N.Y.S.2d 373 ). Here, the case was no longer pending when plaintiff made his motion for leave to renew based on a change in the law, and we therefore conclude that the motion insofar as it sought leave to renew was untimely (see Daniels, 44 A.D.3d at 895–896, 845 N.Y.S.2d 785 ; Glicksman, 278 A.D.2d at 366, 717 N.Y.S.2d 373 ).
We further conclude that the court did not abuse its discretion in denying the motion insofar as it sought to vacate the prior order (see generally Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ). None of the grounds set forth in CPLR 5015(a) for vacatur of an order applies here. Although we agree with plaintiff that CPLR 5015(a)"does not provide an exhaustive list" of the grounds for vacatur ( Woodson, 100 N.Y.2d at 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ), we nevertheless reject plaintiff's contention that there are sufficient reasons to vacate the prior order in the interests of substantial justice (see id. ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.