Cullin v. Lynch

• Decision Date: 01 March 2017
• Citation: 148 A.D.3d 670,48 N.Y.S.3d 711
• Parties: Karen CULLIN, appellant, v. Keith LYNCH, et al., respondents.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 670

48 N.Y.S.3d 711

Karen CULLIN, appellant,

v.Keith LYNCH, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 1, 2017.

Paul W. Haug, Medford, NY, for appellant.

The Law Offices of John J. O'Grady, PLLC, Garden City, NY, for respondent Keith Lynch.

Perez Varvaro & Cariello, Uniondale, NY (Denise A. Cariello of counsel), for respondent Gary Lynch.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for slander and libel, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Asher, J.), entered December 1, 2014, which denied her motion for leave to renew her opposition to those branches of the defendants' separate motions pursuant to CPLR 3211(a) which were to dismiss the cause of action alleging libel insofar as asserted against each of them, which were granted in a prior order of the same court dated April 5, 2012.

ORDERED that the order entered December 1, 2014, is affirmed, with one bill of costs.

For a movant to prevail on a motion for leave to renew, the motion "must be (1) based upon new facts not offered on the 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" (Cioffi v. S.M. Foods, Inc., 142 A.D.3d 526, 529, 36 N.Y.S.3d 664, quoting Matter of Nelson v. Allstate Ins. Co., 73 A.D.3d 929, 929, 901 N.Y.S.2d 329 ; see CPLR 2221[e][2] ; Central Mtge. Co. v. Resheff, 136 A.D.3d 962, 963, 26 N.Y.S.3d 323 ; Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 585–586, 953 N.Y.S.2d 301 ; Jovanovic v. Jovanovic, 96 A.D.3d 1019, 1020, 947 N.Y.S.2d 554 ). Here, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion for leave to renew, inasmuch as the newly submitted evidence would not have changed the prior determination (see Weisz v. Weisz, 123 A.D.3d 917, 919, 999 N.Y.S.2d 133 ; cf. Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 394, 850 N.Y.S.2d 629 ).