“leave to renew upon proper papers” / no successive SJ

Hunter Sports Shooting Grounds, Inc. v Foley, 2014 NY Slip Op 05952 [2nd Dept. 2014]

The Supreme Court properly denied the Town's motion for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff. In a prior order dated October 6, 2011, the Supreme Court denied that branch of the Town's prior motion which was for summary judgment dismissing so much of the complaint as alleged that the noise ordinance was unlawfully and improperly applied to the plaintiff "without prejudice to timely renewal, upon submission of proper papers." In the prior order, the Supreme Court explained that the Town failed to present evidence in admissible form establishing the level of sound emitted by the plaintiff's operation, as the affidavit of its expert, Eric Zwerling, which was made and notarized in the State of New Jersey, lacked the required certificate of conformity (see CPLR 2309[c]; PRA III, LLC v Gonzalez, 54 AD3d 917, 918), and a report of the Noise Consultancy, LLC, was without probative value because it was unsworn and uncertified (see Duke v Saurelis, 41 AD3d 770, 771). Instead of correcting the defects in its supporting papers and moving to renew its prior motion, the Town made a second motion for summary judgment, and submitted the same documents it had submitted in support of its original motion, without rectifying the defects identified by the Supreme Court. Nor did the Town submit any other evidence establishing the level of sound emitted by the plaintiff's operation. Although the Town's failure to submit the relevant certificate of conformity was not a fatal defect that would warrant the outright denial of its motion for summary judgment, here, the Supreme Court properly afforded the Town an opportunity to correct the defect, and yet the Town failed to do so (cf. Midfirst Bank v Agho, ___ AD3d ___, 2014 NY Slip Op 05778; Rosenblatt v St. George Health and Racquetball Assocs., LLC, 119 AD3d 45). Accordingly, the Supreme Court properly denied the Town's second motion on the ground that it was an improper successive motion for summary judgment (see Tingling v C.I.N.H.R., Inc., ___ AD3d ___, 2014 NY Slip Op 05783).

Yakima Tingling v C.I.N.H.R., Inc., 2014 NY Slip Op 05783 [2nd Dept. 2014]

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