Motion for leave to renew.

Defendant's summary judgment motion, unopposed by plaintiff, was granted, and plaintiff moved to vacate, claiming that his failure to oppose was due to law office failure. The motion was denied, since plaintiff failed to submit an affidavit of merit. Plaintiff renewed, but defendant opposed, arguing that plaintiff's affidavit of merit was not executed before a duly authorized person, pursuant to CPLR 2309. In reply, plaintiff submitted a properly notarized affidavit, but the renewed motion was denied because the corrected affidavit was submitted in reply. Plaintiff moved again for leave to renew and to reargue his motion to vacate, this time with the affidavit of merit in admissible form.

The Second Department granted the motion to vacate, in Simpson v. Tommy Hilfiger USA, Inc., which was decided on February 1, 2008. CPLR 2221(e) authorizes a motion for leave to renew based on new facts not offered on the prior motion that would change the prior determination, provided there is reasonable justification for the failure to present those facts previously.

The court said that CPLR 2221(e) should not be construed to disqualify new facts in a document originally rejected for its inadmissible form. The key to qualifying such corrected evidence for treatment on a renewal motion is reasonable justification not having presented it in the prior motion, pursuant to CPLR 2221[e][3]. Here, the court found that the explanation of plaintiff's limitations in language and education and a misunderstanding of the instructions for notarization in Jamaica, West Indies, where plaintiff resides, qualified as a reasonable justification for failing to present the affidavit in admissible form in the first renewal motion.

The court also vacated the prior order granting defendant's unopposed motion for summary judgment. Plaintiff demonstrated a reasonable excuse for his default, pursuant to CPLR 5015[a][1], by showing that the default resulted from the law office failure of his attorney who did not calendar the return date of the summary judgment motion and serve and file opposition papers. Defendant did not show that these failures eere either intentional or part of a pattern of willful default or neglect.