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CPLR § 6301

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

Dixon v Malouf, 2009 NY Slip Op 02745 (App. Div., 2nd, 2009)

To be entitled to a preliminary injunction, the moving party has the
burden of demonstrating (1) a likelihood of success on the merits, (2)
irreparable injury absent granting the preliminary injunction, and (3)
a balancing of the equities in the movant's favor (see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Coinmach Corp. v Alley Pond Owners Corp., 25 AD3d 642,
643). The purpose of a preliminary injunction is to maintain the status
quo and prevent the dissipation of property that could render a
judgment ineffectual (see Ruiz v Meloney, 26 AD3d 485, 486; Ying Fung Moy v Hohi Umeki, 10 AD3d 604). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court (see Ruiz v Meloney, 26 AD3d at 486).

Here, the plaintiff failed to meet his burden of demonstrating
that he would suffer irreparable injury if the preliminary injunction
were not granted (see Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1072, 1073; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 271 AD2d 656, 657; Neos v Lacey, 291 AD2d 434, 435; Kurzban & Son v Board of Educ. of City of N.Y., 129 AD2d 756, 757). Accordingly, the Supreme Court properly denied his cross [*2]motion for a preliminary injunction.

The bold is mine.

Defense raised for first time in Reply may be considered on appeal

Jones v Geoghan, 2009 NY Slip Op 02752 (App. Div., 2nd, 2009)

Although the appellants expressly raised a defense based on the
emergency doctrine for the first time in their reply papers, we may
consider it on appeal. In the first instance, the defense was raised in
direct response to the allegation made in the plaintiff's opposition
papers that the decedent was struck by a van in motion, rather than
thrown into the path of a stopped van (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621; Ryan Mgt. Corp. v Cataffo, 262 AD2d 628, 630; see also Kelsol Diamond Co. v Stuart Lerner, 286
AD2d 586, 587). Moreover, "[a]lthough the existence of an emergency and
the reasonableness of a party's response to it will ordinarily present
questions of fact" (Bello v Transit Auth. of N.Y. City 12 AD3d 58, 60; see Makagon v Toyota Motor Credit Corp., 23 AD3d 443, 444), those issues, under the circumstances here, are determinable as a matter of law (see Vitale v Levine, 44 AD3d at 936; Gajjar v Shah, 31 AD3d at 378; Marsch v Catanzaro, 40 AD3d 941, 942; Garcia v Prado, 15 AD3d 347; Huggins v Figueroa, 305
AD2d 460, 462). The appellants' reply papers presented no new facts,
but only an issue of law which appears on the face of the record. Thus,
the defense based on the emergency doctrine may be considered on this
appeal, as that issue was briefed by the parties on appeal (see Hoffman v City of New York, 301 AD2d 573, 574) and could not have been avoided if brought to the Supreme Court's attention at the proper juncture (see generally Dugan v Crown Broadway, LLC, 33 AD3d 656; Hoffman v City of New York, 301 AD2d at 574; Block v Magee, 146
AD2d 730, 732-733). Further, the facts surrounding the events leading
up to the accident were known to the plaintiff and, thus, there was no
unfair surprise when the defense was raised by the appellants in their
reply to the plaintiff's opposition (cf. Vitale v Levine, 44 AD3d at 936; Bello v Transit Auth. of N.Y. City, 12 AD3d at 61).

As someone else noted, "Makes sense, since the raising of the defense is in response to an aff
in opp, and not something that had any place in the actual motion. I
can dig it."

Evidence

Wolodkowicz v Seewell Corp., 2009 NY Slip Op 02776 (App. Div., 2nd, 2009)

At trial, over the plaintiff’s objection, the defendant was
permitted to present testimony of a previously undisclosed witness
regarding prior incident reports at the Dunkin Donuts, as well as the
store’s structure and outdoor lighting conditions. The plaintiff
previously had demanded disclosure of, inter alia, witnesses to “[t]he
nature and duration of any alleged condition which allegedly caused”
the plaintiff’s accident, and an April 4, 2007, preliminary conference
order required a response to her discovery demands within 30 days. In
addition, again over the plaintiff’s objection, the court permitted the
defendant to present photographs of the location of the accident that
it had failed to exchange with the plaintiff during discovery.
[*2]

The jury determined that the
defendant was not negligent. Contrary to the plaintiff’s contention,
the verdict was not contrary to the weight of the evidence (see Matthias v Mary Immaculate Hosp., 274 AD2d 559).

However, the trial court erred in allowing an undisclosed witness to testify for the defendant (see Kavanaugh v Kuchner, 243 AD2d 445, 446), and a new trial is warranted under the circumstances (id.; Skowronski v F & J Meat Packers, 210 AD2d 392, 393; Carvache v New York City Tr. Auth., 175
AD2d 41, 42). We note that “there is no reason to preclude the
witness’s testimony at the new trial as the [plaintiff] can no longer
claim either surprise or lack of opportunity to prepare a responsive
defense” (Kavanaugh v Kuchner, 243 AD2d at 446).

The admission into evidence of the photographs marked Exhibits B
through F also was error. Defense counsel took the photographs during
the lunch recess immediately following the plaintiff’s direct trial
testimony and did not provide copies to the plaintiff, thereby
depriving her of the opportunity to counter them by taking her own
photographs. Accordingly, a new trial is warranted for this reason as
well (see Dugan v Dieber, 32 AD2d 815). The plaintiff’s
contention that the admission of the defendant’s photographs marked
Exhibits G through I was improper is unpreserved for appellate review
as her objection to the admission of these exhibits was withdrawn prior
to summation.

The bold is mine.

CPLR § 1001 Necessary Joinder

CPLR § 1001 Necessary joinder of parties

CPLR 2221 Motion affecting prior order
(a) Parties who should be joined

Menorah Home & Hosp. for Aged & Infirm v Jelks, 2009 NY Slip Op 02758 (App. Div., 2nd, 2009)

In an action to recover payment for professional nursing care
services, to set aside a conveyance of real property as fraudulent, and
to declare the subject deed null and void, nonparty Green Tree Credit,
LLC, f/k/a Conseco Finance Credit Corp., appeals from an order of the
Supreme Court, Kings County (Dabiri, J.), dated December 17, 2007,
which denied its motion, in effect, pursuant to CPLR 2221(a) and
1001(a) to vacate those portions of a prior order of the same court
dated December 5, 2006, granting that branch of the plaintiff's motion
which was for leave to amend the complaint to add a cause of action to
set aside a deed of real property to the defendant as fraudulent, and
amended a prior order and judgment (one paper) of the same court
(Ruchelsman, J.), dated September 12, 2005, to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly.

ORDERED that the order is reversed, on the law, with costs, the
nonparty-appellant's motion, in effect, pursuant to CPLR 2221(a) and
1001(a) is granted, and those provisions of the December 5, 2006, order
which granted that branch of the plaintiff's motion which was for leave
to amend the complaint and which amended the order and judgment dated
September 12, 2005, to include a declaration that the subject deed is
null and void and a direction to the County Clerk of Kings County to
mark the records accordingly are vacated, and that branch of the
plaintiff's motion which was for leave to amend the complaint is
denied.
[*2]

"It is a fundamental legal
principle that an individual may not be deprived of property without
due process of law, which requires that one be accorded notice and an
opportunity to be heard" (Friedman v Friedman, 125 AD2d 539,
541). Contrary to the plaintiff's contention and the determination of
the Supreme Court, the plaintiff was required to join the
nonparty-appellant, Green Tree Credit, LLC, f/k/a Conseco Finance
Credit Corp. (hereinafter Green Tree), the mortgagee of the subject
premises, as a necessary party in its cause of action to set aside the
conveyance of the subject premises as fraudulent, and to declare the
subject deed null and void (see CPLR 1001[a]; Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750, 751; Losner v Cashline, L.P., 284 AD2d 433; Friedman v Friedman, 125 AD2d 539, 541; see e.g. Skiff-Murray v Murray, 17 AD3d 807).
Accordingly, the failure of the plaintiff to join Green Tree as a
defendant requires that the portions of the Supreme Court's resulting
order dated December 5, 2006, granting that branch of the plaintiff's
motion which was for leave to amend the complaint to add a cause of
action to set aside the conveyance of the subject premises as
fraudulent, and to declare the subject deed null and void, and amending
a prior order and judgment of the same court to include a declaration
that the subject deed is null and void and a direction to the County
Clerk of Kings County to mark the records accordingly be vacated, and
that that branch of the plaintiff's motion which was for leave to amend
the complaint be denied.

The bold is mine.

CPLR R. 3124; CPLR R. 3120; CPLR § 4504(a); CPLR § 4503(a); Privilege

CPLR R. 3124

CPLR R. 3120 Discovery and production of documents and things for inspection, testing, copying or photographing

CPLR § 4504. Physician, dentist, podiatrist, chiropractor and nurse
(a) Confidential information privileged

Jackson v Jamaica Hosp. Med. Ctr., 2009 NY Slip Op 02712 (App. Div., 3rd, 2009)

[P]laintiff commenced this second fraud action against defendants in
Clinton County, again alleging that certain purported inconsistencies
between other official documents and defendant's medical records for
the victim, which plaintiff claims were [*2]fraudulently
made, deprived him of the ability to present a viable defense at his
criminal trial. Plaintiff filed an amended notice of discovery (see
CPLR 3120) seeking limited "non-medical information" in defendants'
medical records regarding the victim, relating strictly to "time data"
for the date of the victim's death, namely "time of all calls" to
Jamaica Hospital, "time of arrival" at its emergency room and "time of
death." Plaintiff requested that all confidential and privileged
material be redacted (see CPLR 4504 [a]).

Defendants did not respond to plaintiff's discovery demand, so plaintiff moved to compel a response (see
CPLR 3124). Jamaica Hospital cross-moved to deny that relief. Supreme
Court (Dawson, J.) granted plaintiff's motion and denied Jamaica
Hospital's cross motion. Jamaica Hospital now appeals.

Jamaica Hospital has not demonstrated that res judicata applies
to this motion. Under that doctrine, a prior valid final judgment on
the merits precludes litigation between the same parties of any claim
that was or could have been raised in the prior action (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12 [2008]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]; Kinsman v Turetsky, 21 AD3d 1246, 1246-1247 [2005], lv denied 6 NY3d 702 [2005]). Supreme Court, Queens County merely denied plaintiff's unopposed motion to compel disclosure ^[FN1] due to lack of standing, which is not a determination "on the merits" (see Landau, P.C. v LaRossa, Mitchell & Ross,
11 NY3d at 13-14 and n 3). Likewise, the record does not indicate that
there has been a "final judgment" rendered in the Queens County matter (Parker v Blauvelt Volunteer Fire Co.,
93 NY2d at 347). Thus, Jamaica Hospital has not shown that the Queens
County order precludes plaintiff's present motion to compel discovery.

The documents that plaintiff seeks, as redacted, are not
privileged and must be disclosed. Jamaica Hospital, as the party
objecting to disclosure, bore the burden of proving its assertion that
the material sought is privileged under CPLR 4504 (a) and the federal
Health Insurance Portability and Accountability Act (42 USC § 1320d et seq. [hereinafter HIPAA]; see Koump v Smith, 25 NY2d 287, 294 [1969]; see also Dillenbeck v Hess,
73 NY2d 278, 287 [1989]). The physician-patient privilege "prohibits
disclosure of any information acquired by a physician 'in attending a
patient in a professional capacity, and which was necessary to enable
[the physician] to act in that capacity'" (Dillenbeck v Hess, 73 NY2d at 284, quoting CPLR 4504 [a]; see State of New York v General Elec. Co.,
201 AD2d 802, 802-803 [1994]). The very narrow information sought by
plaintiff regarding when certain events occurred, as documented in the
victim's medical records on the date of his death was not information
necessary to the victim's medical treatment; it was merely documented
facts regarding time data that would be obvious to a layperson (see Williams v Roosevelt Hosp., 66 NY2d 391, 396 [1985]; Henry v Lewis, 102 AD2d 430, 437 [1984] [dates and times of treatment not privileged]; see also Matter of Grand Jury Investigation in N.Y. County, 98 NY2d 525, 530 [2002]; People v Elysee, 49 AD3d 33, 37-39 [2007], affd 12 NY3d 100 [2009]; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 113 AD2d 49, 55 [1985], affd 69 NY2d 232 [1987], cert denied 482 US 928 [1987]). Hence, the information was not privileged under state law.
[*3]

HIPAA regulates disclosure of
"protected health information," which includes "individually
identifiable health information," defined as health information that
"[i]s created or received by a health care provider . . . and [r]elates
to past, present, or future physical or mental health or condition of
an individual[,] the provision of health care to an individual [or
payment therefor]," and identifies the patient or which reasonably
could be so used (45 CFR 160.103; see 42 USC 1320d [6] [B]; Arons v Jutkowitz, 9 NY3d 393,
413 [2007]). The time data sought by plaintiff cannot be characterized
as protected health information, as it has no apparent connection to
the victim's physical condition or medical care. As Jamaica Hospital
failed to demonstrate that the circumscribed redacted time data is
privileged, Supreme Court properly denied its cross motion and granted
plaintiff's motion to compel a response to his amended notice for
discovery.

CPLR § 4503 Attorney
(a) 1 Confidential communication privileged

Straus v Ambinder, 2009 NY Slip Op 02772 (App. Div., 2nd, 2009)

The plaintiff met his burden of proving that the subpoenaed documents were protected by the attorney-client privilege (see CPLR 3101[b], 4503[a]; Matter of Priest v Hennessy, 51
NY2d 62, 69). While a court is not bound by the conclusory
characterizations of a client or his attorney, here, there was no
reason to disregard the attorney's sworn statement regarding the nature
of the engagement of the accounting firm (see Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 379-380).

In any event, the plaintiff also established that the requested
documents were protected as material prepared by the accountants for
his attorneys in anticipation of litigation (see CPLR 3101[d][2]; Carrafiello v Massachusetts Mut. Life Ins. Co., 266
AD2d 117 ). Where, as here, the party seeking to prevent disclosure
makes the required showing that the documents were prepared [*2]solely
for litigation, the burden shifts to the party seeking disclosure to
establish that there is a substantial need for the materials and they
cannot be obtained elsewhere without undue hardship (see Volpicelli v Westchester County, 102 AD2d 853; Zimmerman v Nassau Hosp., 76
AD2d 921). Inasmuch as the defendant failed to show that he could not
obtain the requested documents without undue hardship, the Supreme
Court properly issued the protective order.

The bold is mine.

CPLR R. 3212(f)

CPLR R. 3212(f) Facts unavailable to opposing party

Dalaba v City of Schenectady, 2009 NY Slip Op 02704 (App. Div., 3rd, 2009)

Finally, we discern no abuse of discretion in Supreme Court's decision
to grant plaintiff partial summary judgment on his Labor Law § 240
(1) claim without providing Edison with additional time within which to
complete discovery (see CPLR 3212 [f]). Edison offered no
explanation for its failure to depose plaintiff during the 10 months
since it filed its answer (see Steinborn v Himmel, 9 AD3d 531, 535 [2004]; cf. Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d 805,
806 [2005]). Also, in opposition to plaintiff's motion, Edison
submitted an affidavit of plaintiff's coworker who witnessed his fall,
undermining Edison's unsupported and speculative claim that plaintiff
"may have exclusive knowledge of facts which may defeat his [*3]motion and claims in general" (see Steinborn v Himmel, 9 AD3d at 535; Oliveira v County of Broome, 5 AD3d 898, 899 [2004]). Given Edison's inadequate showing, the grant of summary judgment to plaintiff was not premature.

CPLR R. 3212 Effect of Preclusion Order

CPLR R. 3212

Hesse Constr., LLC v Fisher, 2009 NY Slip Op 02702 (App. Div., 3rd, 2009)

Supreme Court did not abuse its discretion in enforcing the order of
preclusion. "[T]he conditional order was self-executing and
[defendant]'s failure to produce [requested] items on or before the
date certain rendered it absolute" (Wilson v Galicia Contr. & Restoration Corp.,
10 NY3d 827, 830 [2008] [internal quotation marks and citations
omitted]). Defendant's overall pattern of noncompliance, both in
response to plaintiff's repeated demands for the requested disclosure
and following the issuance of the stipulated conditional order of
preclusion, gives rise to an inference that her conduct was willful and
contumacious (see Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616, 617-618 [2006]; Robinson Saw Mill Works v Speilman, 265 AD2d 604, 606 [1999]; Tleige v Troy Pediatrics,
237 AD2d 772, 773-774 [1997]). Notably, defendant stipulated to the
consequences of her conduct and proffered no adequate excuse for her
noncompliance (see Greaves v Burlingame, 12 AD3d 730, 731 [2004], lv dismissed and denied 5 NY3d 741 [2005], lv dismissed 5 NY3d 742 [2005]; Cavanaugh v Russell Sage Coll., 4 AD3d 660,
660-661 [2004]). Under these circumstances, we cannot conclude that
Supreme Court improvidently exercised its discretion in ordering the
preclusion of defendant's evidence.

Nor do we find error in Supreme Court's award of summary
judgment in favor of plaintiff and dismissal of defendant's
counterclaim. Plaintiff made a prima facie showing of entitlement to
judgment for the unpaid balance of the work performed by producing,
among other things, work estimates signed by the parties, billing
statements, and evidence demonstrating that the agreed-upon work was
performed and that a portion of the work went unpaid. Defendant, unable
to offer any admissible evidence as a consequence of the order of
preclusion, failed to raise an issue of fact sufficient to withstand
summary judgment (see CPLR 3212 [b]; Zuckerman v New York,
49 NY2d 557, 562 [1980]). Similarly, in the absence of any competent
proof to support her counterclaim, it was also properly dismissed by
Supreme Court.

The bold is mine.

CPLR R. 3211(a)(7)

CPLR R. 3211(a)(7)

Zaichik v HK Investigations Co., 2009 NY Slip Op 50601(U) (App. Term, 1st, 2009)

On a motion to dismiss a complaint for failure to state a cause of
action under CPLR 3211(a)(7), the facts alleged in the complaint must
be accepted as true and given every favorable inference, and
"affidavits submitted by a [defendant] will almost never warrant
dismissal … unless they establish conclusively that [plaintiff] has
no [claim or] cause of action'" (Lawrence v Miller, NY3d , 2008 NY Slip Op 9434, *8, quoting Rovello v Orofino Realty Co., 40
NY2d 633, 635-636 [1976]). Applying this review standard, we find that
plaintiff's action against the Gold defendants was prematurely
dismissed. Plaintiff has not had the opportunity to lay bare admissible
proof as to defendants' alleged wrongful conduct, and although
defendants' [*2]supporting affidavit may
have presented a seemingly strong defense, it did not conclusively
establish that plaintiff has no cause of action.

DaCosta v Trade-Winds Envtl. Restoration, Inc., 2009 NY Slip Op 02743 (App. Div., 2nd 2009)

However, the plaintiff sufficiently alleged the third cause of action
to recover damages under the theory of strict liability. On a motion to
dismiss pursuant to CPLR 3211(a)(7), the court may consider affidavits
submitted by the plaintiff to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636; Meyer v Guinta, 262 AD2d 463, 464).

Glezelis v Halkiopoulos, 2009 NY Slip Op 02747 (App. Div., 2nd, 2009)

In their answer, the defendants asserted counterclaims based on certain
allegedly fraudulent misrepresentations made by the plaintiff. In order
to prevail on the counterclaims, the defendants would have to
demonstrate, among other things, that they justifiably relied on the
plaintiff's alleged misrepresentations, and were injured as a result of
those misrepresentations (see Channel Master Corp. v Aluminum Ltd. Sales,
4 NY2d 403, 407). However, even when accepting the facts alleged in
support of the counterclaims as true, and according the defendants the
benefit of every possible favorable inference (see Leon v Martinez,
84 NY2d 83, 87), the counterclaims are not supported by sufficient
allegations from which it could reasonably be found that the defendants
justifiably relied on the alleged misrepresentations (see Sareen v Sareen, 51 AD3d 765). Furthermore, some of the counterclaims are not supported by sufficient allegations from which it could reasonably be found [*2]that the defendants were injured as a result of the alleged misrepresentations (see Old Clinton Corp. v 502 Old Country Rd., 5 AD3d 363,
364-365). Under these circumstances, the Supreme Court should have
granted that branch of the plaintiff's motion which was to dismiss the
counterclaims (seesee also CPLR 3016[b]).
CPLR 3211[a][7];

The bold is mine.

CCA § 1702 Appeals; judgments and orders appealable

Beth Israel Med. Ctr. v Rodriguez, 2009 NYSlipOp 50619(U) (App. Term, 1st, 2009)

While the dismissal order is not appealable as of right because it
did not decide a motion made on notice (CCA 1702[c]), in the interest
of judicial economy we deem the notice of appeal to be a motion for
leave to appeal and grant such leave (see Alveranga-Duran v Whitehall Apts., 40 AD3d 287 [2007]).

The sua sponte dismissal of plaintiff's complaint at a pre-trial
conference, apparently based on a single, unsigned letter said to have
been written by a representative of nonparty Oxford Insurance Company,
was error. Even assuming the authenticity and admissibility of the
correspondence, at this juncture, it did not conclusively establish a
defense as a matter of law, warranting the drastic measure of an
unsolicited dismissal prior to trial.

Compare New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 2008 NY Slip Op 52584(U) (App. Term, 2nd, 2008)

To the extent the court denied plaintiffs' oral motion, no appeal as of
right lies from an order which does not decide a motion made on notice,
and the instant motion, although not ex parte, was not made on notice (see CCA 1702 [a] [2]; CPLR 2211; 1223 Bushwick, LLC v Williams, 19 Misc 3d 128[A], 2008 NY Slip Op 50512[U] [App Term, 2d & 11th Jud Dists 2008]; Cucaj v Paramount Fee, L.P., 17 Misc 3d 130[A],
2007 NY Slip Op 51976[U] [App Term, 2d & 11th Jud Dists 2007]). To
the extent the court dismissed plaintiffs' complaint, no appeal lies
from a decision (see Schicchi v Green Constr. Corp., 100 AD2d 509 [1984]).

What about a motion (on notice) to renew or reargue a motion not made on notice?

CPLR § 2211

CPLR § 2211 Application for order; when motion made

Esdaille v Whitehall Realty Co., 2009 NY Slip Op 02669 (App. Div., 1st, 2009)

The court properly found that the motion for summary judgment was
timely, as it was served within the time dictated by the court (see CPLR 2211; Gazes v Bennett, 38 AD3d 287
[2007]). The 10-day delay in re-noticing the motion was due to the
Clerk's office rejection of the original motion papers because the case
had been transferred to another part that required motions to be
brought by order to show cause (see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2006]).

CPLR § 2211(e) (2)

Vasile v Long Is. Power Auth., 2009 NY Slip Op 50581(U) (App. Term, 2nd, 2009)

Plaintiff's appeal from so much of the order as denied his motion
for reargument must be dismissed as the denial of such a motion is not
appealable (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]; Kahlke v Buscemi, 12 AD3d 488 [2004]).

To the extent plaintiff is also appealing from so much of the
order as denied the branch of his motion seeking leave to renew, we
note that CPLR 2221 (e) (2) provides that a motion for leave to renew a
prior motion must be based upon "new facts not offered on the prior
motion that would change the prior determination" or must show "that
there has been a change in the law that would change the prior
determination." Furthermore, the motion papers must contain a
"reasonable justification for the failure to present such facts on the
prior motion" (CPLR 2221 [e] [*2][3]). In
the instant case, plaintiff did not proffer a reasonable justification
for his failure to present the facts upon which his renewal motion was
based to the motion court on his original cross motion for summary
judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Accordingly, the branch of plaintiff's motion seeking leave to renew was properly denied.

The bold is mine