Category: CPLR R. 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).

CPLR R. 2221

Mazinov v Rella, 2010 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 874; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434; Amato 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 Swersky, 2010 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]).

Normally, I don’t write anything
special for the 4^th of July. 
I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty:
watching Starship Troopers.  The
number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions
have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an
expert to base her testimony on hypotheticals alone[1]
probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent
3212 decisions.  I was going to put all of the recent decisions in one
post, but decided that it would take up too much time and space.  And,
nobody would read anything that long.

The last decision also discusses relaxing CPLR R.
2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2^nd,
2010)

As the proponent of the motion for
summary judgment, the bank was required to make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase
Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet
this burden, as the evidence it submitted was insufficient to eliminate any triable
issues of fact as to whether the relevant account statements were "made
available" to the plaintiff before January 5, 2005, the date on which she
discovered the forgeries (UCC 4-406[4]; see
Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress,
Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court
improperly denied that branch of the bank's motion which was to strike the
plaintiff's demand for a jury trial[2]
(see generally Brian Wallach Agency v
Bank of N.Y., 75 AD2d 878; Massry
Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2^nd,
2010)

Contrary to the plaintiff's
contention, the defendants' motion was not premature, as the plaintiff failed
to offer an evidentiary basis to suggest that discovery may lead to relevant
evidence or that facts essential to opposing the motion were exclusively within
the defendants' knowledge and control (see
CPLR 3212[f]; Hill v Ackall, 71
AD3d 829; Kimyagarov v Nixon
Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2^nd,
2010)

"A party opposing summary
judgment is entitled to obtain further discovery when it appears that facts
supporting the opposing party's position may exist but cannot then be
stated" (Matter of Fasciglione,
73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926).
Here, at the time the defendant landowners moved for summary judgment, they had
not been deposed. Moreover, it appears that information concerning whether they
created the alleged dangerous condition on the sidewalk abutting their property
which caused the plaintiff's accident, or enjoyed a special use of the sidewalk
which gave rise to the dangerous condition, may be within their exclusive
knowledge (see Adler v City of New York,
52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not
improvidently exercise its discretion in denying, as premature, the defendants'
motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1^st,
2010)

A court, in the course of deciding
a motion, is empowered to search the record and award summary judgment to a
nonmoving party (see CPLR 3212(b); Lennard v Khan, 69
AD3d 812, 814 [2010]). However, with respect to the June 2009
order, the motion court erred in dismissing the Labor Law § 241(6) claim
against Farrell, as that claim was not placed before the court on plaintiffs'
summary judgment motion (see Dunham v
Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order,
the motion court should have granted the motions to renew. Although the newly
submitted evidence was available at the time of the prior motion, the court
"ha[d] discretion to relax this requirement and to grant such a motion in
the interest of justice" (Mejia v
Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer
reasonable justification for failing to submit the evidence submitted on the motion,
but the new facts submitted do, in fact, change the prior determination (CPLR
2221[e][2]).