2221

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
(e) Motion for Leave to Renew

Jordan v Yardeny, 2011 NY Slip Op 04423 (App. Div., 2nd 2011)

A motion for leave to renew must be based upon new facts not offered on a prior motion that would change the prior determination, and set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e]; Swedish v Beizer, 51 AD3d 1008, 1010). The Supreme Court properly denied that branch of the defendant's motion which was, in effect, for leave to renew his prior motion to vacate the default judgment, as the new facts proffered would not have changed the prior determination (see CPLR 2103[b]; Cole v Young, 28 AD3d 702, 703; Jackson-Cutler v Long, 2 AD3d 590; Barbagallo v Nationwise Exterminating & Deodorizing, 260 AD2d 518, 519). Furthermore, the defendant failed to set forth a reasonable justification for the failure to present the new facts on the prior motion.

Zito v Jastremski, 2011 NY Slip Op 04240 (App. Div., 2nd 2011)

The Supreme Court providently exercised its discretion when it, in effect, denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendants' respective motions for summary judgment (see CPLR 2221[e]; O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). The plaintiff sought leave to renew her opposition to the defendants' motions for summary judgment so that she could submit the dental records relied upon by her expert, which she failed to submit with her original opposition. The plaintiff failed to offer a reasonable justification as to why the proffered evidence was not submitted at the time of the prior motion. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Renna v Gullo, 19 AD3d 472; Hart v City of New York, 5 AD3d 438; Rubinstein v Goldman, 225 AD2d 328, 328-329). In addition, the records sought to be submitted would not have changed the prior determinations (see CPLR 2221[e][2]). Accordingly, that branch of the motion which was for leave to renew was properly denied.

Haque v Daddazio, 2011 NY Slip Op 04041 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, since the plaintiff failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and, moreover, he improperly presented arguments not previously advanced (see CPLR 2221[d][2]). A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Mazinov v Rella, 79 AD3d 979, 980, quoting McGill v Goldman, 261 AD2d 593, 594).

Too late to attach transcript.

Suits v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 03894 (App. DIv., 1st 2011)

Defendant's motion to renew was correctly denied since the deposition transcript proffered upon renewal existed at the time the original motion was made, and defendant failed to proffer any reasonable excuse for its failure to obtain a copy of the transcript from co-defendant's counsel before making that motion (see CPLR 2221[e]; Silverman v Leucadia Inc., 159 AD2d 254 [1990]).

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