Schwelnus v Urological Assoc. of L.I., P.C., 2012 NY Slip Op 02858 (2d Dept. 2012)
The Supreme Court improvidently exercised its discretion in denying the defendants’ motion for leave to renew their motion for summary judgment dismissing the complaint on the ground that the defendants’ motion was not based upon new facts not offered on the prior motion. CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; [*2]see also Coccia v Liotti, 70 AD3d 747; Arkin v Resnick, 68 AD3d 692). The defendants corrected their inadvertent procedural errors with respect to the transcripts and provided a reasonable justification for failing to present the transcripts in admissible form in support of their motion for summary judgment such that leave to renew should have been granted (see Darwick v Paternoster, 56 AD3d 714; DeLeonardis v Brown, 15 AD3d 525).
