Aquatic Pool & Spa Servs., Inc. v. WN Weaver St., LLC

• Decision Date: 31 October 2012
• Docket Number: INDEX NO.: 59075/12
• Citation: 2012 NY Slip Op 33811 (U)
• Parties: AQUATIC POOL & SPA SERVICES, INC., Plaintiff, v. WN WEAVER STREET, LLC, Defendant.
• Court: New York Supreme Court

2012 NY Slip Op 33811(U)

AQUATIC POOL & SPA SERVICES, INC., Plaintiff,
v.
WN WEAVER STREET, LLC, Defendant.

INDEX NO.: 59075/12

SUPREME COURT OF THE STATE OF NEW YORK IAS PART, WESTCHESTER COUNTY

October 31, 2012

NYSCEF DOC. NO. 29

DECISION AND ORDER

To commence the statutory period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this Order, with notice of entry, upon all parties.

Present: HON. MARY H. SMITH Supreme Court Justice

MOTION DATE: 10/26/12

The following papers numbered 1 to 7 were read on this motion by defendant for an Order granting reargument and/or renewal of a portion of this Court's September 25, 2012, Decision and Order, etc.

	Papers Numbered
Order to Show Cause - Affirmations (Furman) - Affidavit; (Weinberq) - Exhs. (A-F)	1-5
Answering Affirmation (Corrigan) - Exh	6-7

Upon the foregoing papers, it is Ordered that defendant's motion for an Order granting reargument and/or renewal of that portion of this Court's September 25, 2012, Decision and Order, which had denied defendant's request for an Order extending its

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time to answer the complaint is denied.

Firstly, the Court notes that defendant properly should have annexed a complete copy of the underlying papers to its instant mot ion. See Lower Main Street LLC v. Thomas Re & Partners, (Alpert, J.), N.Y.L.J., April 5, 2005, p. 19, col. 3, citing generally Gerhardt v. New York City Transit Authority, 8 A.D.3d 427 (2nd Dept. 2004); Sheedv v. Pataki, 236 A.D.2d 92, 97 (3rd Dept. 1997), lv. to app. den. 91 N.Y.2d 805 (1998); Bellofato v. Bellofato, 8 Misc.3d 1019(A) (Sup. Ct. Put. Co. 2005).

In any event, with respect to reargument, defendant has failed to demonstrate that this Court, in reaching its prior Decision and Order denying defendant an extension of time in which to answer, had misapprehended any of the relevant facts or had misapplied any controlling principal of law. See CPLR 2221, subd. (d), par. 2; Pro Brokerage Inc. v. Home Insurance Co., Inc., 99 A.D.2d 971 (1^st Dept. 1984); Foley v. Roche, 68 A.D.2d 558, 567 (1^st Dept. 1979); see, also Amato v. Lord & Taylor, Inc., 10 A.D.3d 374 (2^nd Dept. 2004). Reargument does not afford a party the opportunity to successive opportunities to reargue that which has been decided. See Mazinov v. Rella, 79 A.D.3d 979 (2^nd Dept. 2011); Pro Brokerage Inc. v. Home Insurance Co., Inc., supra. Moreover, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the

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original motion, see V. Veeraswami Realty v. Yenom Corp., 71 A.D.3d 874 (2^nd Dept. 2010); Gellert & Rodner v. Gem Community Management, Inc., 20 A.D.3d 388 (2^nd Dept. 2005); Amato v. Lord & Taylor, Inc., 10 A.D.3d 374, 375 (2^nd Dept. 2004) ; Spatola v. Tarcher, 293 A.D.2d 523 (2^nd Dept. 2002); Matter of Mayer v. National Arts Club, 192 A.D.2d 863, 865 (3^rd Dept. 1993); Lopez v. New York City Housing Authority, 7 Misc.3d 1006(A) (N.Y. Sup. Ct. 2005), and no new facts may be considered. See Frenchman v. Lynch, 31 Misc.3d 1209(A) (Sup. Ct. Nass. Co. 2011).

In its earlier Decision and Order, this Court correctly had found that defendant was in default of pleading, see infra, that it had offered no reasonable excuse for its delay in timely appearing, moving for relief, or answering the complaint, that it had failed to properly offer any meritorious defense and that it had failed to submit a copy of a verified proposed answer. This Court therefore properly had concluded that it would have been an improvident exercise of its discretion to have granted defendant's then request for an Order extending its time to answer or compelling plaintiff's acceptance of its late answer. Defendant's motion for reargument is thus denied.

To the extent that defendant now is moving for renewal of this Court's earlier Decision and Order, its motion also is denied. An application for renewal "shall be based upon new facts not offered

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on the prior motion that would change the prior determination and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221, subd. (e), paras. 2, 3; see, also Sobin v. Tvlutki, 59 A.D.3d 701 (2^nd Dept. 2009). "Renewal is granted sparingly, and only in cases where there exists a valid excuse for failing to submit additional facts on the original application." Matter of Beiny v. Wynyard, 132 A.D.2d 190 (1^st Dept. 1987), app. dsmd. 71 N.Y.2d 994 (1988). Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion, see Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 437 (2^nd Dept. 2007); Sobin v. Tylutki, 59 A.D.3d 701 (2^nd Dept. 2009), and renewal is not available as a second chance for parties who have not exercised due diligence in making their first factual presentation....