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
bruteforcelawyer.com 