You can’t renew a motion you didnt oppose

Singh v Reddy, 2018 NY Slip Op 03722 [2d Dept. 2018]

The branch of the plaintiffs' motion which was for leave to renew was properly denied, since there was no opposition to the defendants' motion to dismiss that could have been renewed (see CPLR 2221; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705). To the extent that the Supreme Court treated that branch of the plaintiffs' motion as, in effect, a motion to vacate the default, that branch of the plaintiffs' motion was also properly denied. The plaintiffs failed to establish a reasonable excuse for their default (see CPLR 5015[a][1]; Taylor Appraisals v Prokop, 99 AD3d 985, 985).

Can’t grant leave to renew, while denying a motion, all willy nilly like

Foo-Lu Co. v Rojas, 2018 NY Slip Op 02772 [2d Dept 2018]

The Supreme Court, upon denying the plaintiffs' and Chao's initial motion for summary judgment, improvidently exercised its discretion by, in effect, granting the moving parties leave to renew. The defect in the initial motion was not merely technical but substantive, inasmuch [*2]as the moving parties failed, without explanation, to submit evidence, in admissible form, establishing, inter alia, their ownership of the subject mortgage note or the existence of Rojas' default. Such evidence could, and should, have been submitted on the original summary judgment motion (see Vinar v Litman, 110 AD3d 867), and sufficient cause was not shown to warrant entertaining a second motion (cf. Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39). Therefore, the order dated April 7, 2015, must be modified accordingly, and the provision of the order dated November 23, 2015, upon renewal, granting the second summary judgment motion must be vacated. In light of our determination with respect to the order dated April 7, 2015, the appeal from that portion of the order dated November 23, 2015, must be dismissed.

The Supreme Court also erred in awarding summary judgment to Fong. It is undisputed that Fong's motion was untimely, having been made 309 days after the filing of the note of issue, or 189 days after the expiration of the 120-day statutory deadline (see CPLR 3212[a]; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866Giambona v Hines, 104 AD3d 811). Even assuming that the court granted an oral application by Fong for leave to file the late motion, as Fong's counsel represented in his papers, such determination would have been an improvident exercise of discretion under the circumstances presented, since leave can be granted only upon a showing of good cause "for the delay in making the motion" (Brill v City of New York, 2 NY3d 648, 652), and no such showing appears in the record (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; cf. Matter of Gilmore, 131 AD3d 1058). Fong's failure to establish good cause for his delay warranted denial of the motion, "without consideration of the merits thereof" (Jones v City of New York, 130 AD3d 686, 687; see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 869; Carrasco v Weissman, 120 AD3d 534, 536; Giambona v Hines, 104 AD3d at 812).

The bold is mine.

Reargue: CPLR 2221

Dogwood Residential, LLC v Stable 49, Ltd., 2018 NY Slip Op 01574 [1st Dept 2018]

The court providently exercised its discretion in granting plaintiffs leave to reargue although they failed to comply with the requirement of CPLR 2221(f) that in a combined motion for reargument and renewal each item of relief be separately identified (see generally Corporan v Dennis, 117 AD3d 601 [1st Dept 2014]; see also GMAC Mtge., LLC v Spindelman, 136 AD3d 1366, 1367 [4th Dept 2016]). The court also providently exercised its discretion in considering a legal argument not expressly made by plaintiffs in opposition to defendant's motion, since the issue could not have been avoided if it had been raised at that stage (see generally Harrington v Smith, 138 AD3d 548 [1st Dept 2016]; see also Rochester v Quincy Mut. Fire Ins. Co., 10 AD3d 417, 418-419 [2d Dept 2004]).

CPLR 2221(e)(2)

CPLR 2221(e)(2)

Fernandez v Moskowitz, 2014 NY Slip Op 00583 [1st Dept. 2014]

Plaintiff contends that our dismissal of the complaint was a "new fact" as considered in CPLR 2221(e)(2), and that he should have been allowed to renew the summary judgment motion to proffer the results of a new diagnostic test and expert's affidavit which, he believes, would probably have persuaded this Court to affirm Supreme Court's denial of summary judgment (CPLR 2221[e][2]). Plaintiff misconstrues the posture of the case. Because the motion court had denied defendants' summary judgment motion, plaintiff as the prevailing party was never entitled to seek renewal of that motion (see e.g. Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983] [where the successful party obtained the full relief sought, it has no ground for appeal [or renewal], even if that party disagrees with the particular findings, rationale or the opinion supporting the order below in its favor]). Moreover, judgment was entered on July 1, 2011, dismissing the complaint, and plaintiff's recourse was to seek to vacate our decision and judgment based on the existence of the new diagnostic test and expert's affidavit (CPLR 5015[a][2]). 

The motion court properly denied plaintiff's motion to renew the earlier motion seeking renewal of the motion for summary judgment. There are no new facts submitted that would entitle him to renew a motion in which he had prevailed.

Emphasis mine.

Renewal and a missing stip

CPLR R. 2221(e) Motion for Leave to Renew

Joseph v Board of Educ. of the City of New York, 2012 NY Slip Op 00306 (1st Dept., 2012)

Where the parties stipulated to a date for making a summary judgment motion and defendant inadvertently failed to append the "so ordered" version of the stipulation, the motion court improvidently exercised its discretion in finding the motion to be untimely. On the motion to renew, defendant provided a so-ordered version of a stipulation, offered a reasonable excuse for its failure to include the new evidence in the original motion (i.e., law office failure), and demonstrated the merit of its defense (see CPLR 2221[e]). In addition, there is no claim of prejudice by plaintiff (see Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). That the additional evidence was available at the time of the original motion is not dispositive (see Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [2010]; Scannell, 256 AD2d at 214). Here, the additional evidence addressed an issue raised by the court in the original decision (Scannell, 256 AD2d at 214). In such circumstances, it was error for the court not to consider the new evidence (id.).

 

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]).

Stipulations and 2221

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

Churchill v Malek, 2011 NY Slip Op 03673 (App. Div. 1st 2011)

Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant's unsubstantiated claim that plaintiff's mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).

Defendant's argument that plaintiff is bound by prior stipulations is unavailing, since both documents were clearly denominated as orders. Equally unavailing is defendant's contention that plaintiff's motion to reargue was untimely. The prior order was never served with notice of entry; therefore, the thirty-day period set forth in CPLR 2221(d)(3) has not been triggered (see Zhi Fang Shi v Sanchez, 36 AD3d 486 [2007]).

Yerushalmi v Yerushalmi, 2011 NY Slip Op 02657 (App. DIv., 2nd 2011)

" A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion'" (Swedish v Beizer, 51 AD3d 1008, 1010; quoting Ellner v Schwed, 48 AD3d 739, 740; see CPLR 2221[e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688). " Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion'" (Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668, 669, quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403, 403; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 982).

Here, the defendant's motion, in effect, for leave to renew was not based upon new facts in existence at the time of the original motion which would have changed the prior determination, but consisted of factual material that was merely cumulative with respect to the factual material submitted in connection with the prior motion. Accordingly, the motion, in effect, for leave to renew was properly denied.

Prinz v New York State Elec. & Gas, 2011 NY Slip Op 02648 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, which had been granted by the Supreme Court in an earlier order. "A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination'" (Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480, quoting CPLR 2221[e][2]; see Renna v Gullo, 19 AD3d 472, 473; Kaufman v Kunis, 14 AD3d 542). Here, the allegedly new facts offered would not have changed the prior determination (see CPLR 2221[e][2]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 985).

Under the circumstances of this case, the Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to amend his complaint (see Kazakhstan Inv. Fund v Manolovici, 2 AD3d 249, 250).

 

R. 2221

CPLR R. 2221

Vazquez v JRG Realty Corp., 2011 NY Slip Op 01349 (App. Div., 1st 2011)

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009]). In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]).

 

CPLR R. 2221: motion not required.

CPLR R. 2221

Mazinov v Rella2010 NY Slip Op 09479 (App. Div., 2nd 2010)

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" (McGill v Goldman, 261 AD2d 593, 594; see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434Amato v Lord & Taylor, Inc., 10 AD3d 374). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion for leave to reargue since they failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and improperly presented arguments not previously advanced (see CPLR 2221[d][2]). 

Rostant v Swersky2010 NY Slip Op 08987 (App. Div., 1st 2010)

Plaintiff was not precluded from moving for reargument before the order on the first decision was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003 [2003]; Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203 [1997], lv denied 90 NY2d 835 [1997]). Nor did plaintiff's failure to submit all the original motion papers on her reargument motion render the latter procedurally defective. CPLR 2221 does not specify the papers that must be submitted on a motion for reargument, and the decision whether to entertain reargument is committed to the sound discretion of the court (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part, denied in part, 80 NY2d 1005 [1992]). Moreover, the motion court gave all parties the opportunity to supplement the record with the underlying papers, and afforded defendants the opportunity to present any further argument warranted by the additional submissions. Thus, defendants were not prejudiced by the deficiencies in plaintiff's submissions on reargument or by the procedures adopted by the court (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269 [2008]).