Empire State Conglomerates v. Mahbur

• Citation: 963 N.Y.S.2d 330,2013 N.Y. Slip Op. 02537,105 A.D.3d 898
• Parties: EMPIRE STATE CONGLOMERATES, respondent, v. Mohammad MAHBUR, et al., appellants.
• Decision Date: 17 April 2013
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 898

963 N.Y.S.2d 330

2013 N.Y. Slip Op. 02537

EMPIRE STATE CONGLOMERATES, respondent,

v.Mohammad MAHBUR, et al., appellants.

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

April 17, 2013.

Law Office of Salami Oyakhilome, P.C., Jamaica, N.Y., for appellant Mohammad Mahbur.

Kirschenbaum & Phillips, P.C., Farmingdale, N.Y. (Steven L. Rosenthal of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for breach of a lease, the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 1, 2012, which denied their motion for leave to renew and reargue their opposition to the plaintiff's motion for summary judgment on the complaint, which had been granted in an order of the same court dated August 31, 2010, and pursuant to CPLR 5015(a)(3) to vacate or modify the order dated August 31, 2010, and a judgment of the same court entered December 30, 2010, which, upon the order dated August 31, 2010, is in favor of the plaintiff and against them in the total sum of $23,495.31.

ORDERED that the appeal by the defendant Nasrin Islam is dismissed as abandoned; and it is further,

ORDERED that the appeal by the defendant Mohammad Mahbur from so much of the order entered March 1, 2012, as denied that branch of the defendants' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument ( see Yebo v. Cuadra, 98 A.D.3d 504, 949 N.Y.S.2d 451;Matter of Leyberman v. Leyberman, 43 A.D.3d 925, 926, 842 N.Y.S.2d 460); and it is further,

ORDERED that the order entered March 1, 2012, is affirmed insofar as reviewed on the appeal by the defendant Mohammad Mahbur; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant Mohammad Mahbur.

Contrary to the contentions of the defendant Mohammad Mahbur (hereinafter the appellant), the Supreme Court properly denied those branches of his motion, made together with the defendant Nasrin Islam, which were for leave to renew the defendants' opposition to the plaintiff's motion for summary judgment on the complaint, and pursuant to CPLR 5015(a)(3) to vacate or modify the order granting that motion and the judgment entered thereon.

A motion for leave to renew “shall be based on new facts not offered 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[e][2], [3]; see Wells Fargo Bank, N.A. v. Russell, 101 A.D.3d 860, 955 N.Y.S.2d 654;Matter of Leyberman v. Leyberman, 43 A.D.3d at 926, 842 N.Y.S.2d 460). While a court has discretionto entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance ( see Deutsche Bank Trust Co. v. Ghaness, 100 A.D.3d 585, 585–586, 953 N.Y.S.2d 301;Yebo v. Cuadra, 98 A.D.3d at 506, 949 N.Y.S.2d 451), since “ ‘[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’ ” ( Matter of Catherine V.D. [ Rachel G. ], 100 A.D.3d 992, 993, 955 N.Y.S.2d 152, quoting Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 437, 840 N.Y.S.2d 817). Inasmuch as the appellant provided no reasonable justification for his failure to submit the proffered information in connection with the original motion, the denial of that branch of the defendants' motion which was for leave to renew was appropriate ( see Forssell v. Lerner, 101 A.D.3d 807, 956 N.Y.S.2d 117;Matter of Catherine V.D. [ Rachel G. ], 100 A.D.3d at 993, 955 N.Y.S.2d 152;Yebo...