Jovanovic v. Jovanovic

• Decision Date: 27 June 2012
• Citation: 96 A.D.3d 1019,947 N.Y.S.2d 554,2012 N.Y. Slip Op. 05147
• Parties: Srdjan JOVANOVIC, respondent, v. Milica JOVANOVIC, appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1019

947 N.Y.S.2d 554

2012 N.Y. Slip Op. 05147

Srdjan JOVANOVIC, respondent,

v.Milica JOVANOVIC, appellant.

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

June 27, 2012.

Michael D. Weinstein, Tarrytown, N.Y., for appellant.

Mark L. Cortegiano, Middle Village, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

In an action for the equitable distribution of marital property following a foreign judgment of divorce, the defendant appeals from an order of the Supreme Court, Queens County (Esposito, J.), dated June 22, 2011, which denied her motion, in effect, for leave to reargue and renew that branch of her prior cross motion which was to compel disclosure, which had been denied in an order of the same court dated September 21, 2009 (Fitzmaurice, J.).

ORDERED that the appeal from so much of the order dated June 22, 2011, as denied that branch of the defendant's motion which was, in effect, for leave to reargue is dismissed, as no appeal lies from an order denying reargument ( see Lamacchia v. Schwartz, 94 A.D.3d 712, 941 N.Y.S.2d 245;Grossman v. New York Life Ins. Co., 90 A.D.3d 990, 935 N.Y.S.2d 643); and it is further,

ORDERED that the order dated June 22, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Contrary to the defendant's contention, the Supreme Court properly treated the instant motion as a motion for leave to reargue and renew that branch of her prior cross motion which was to compel disclosure. Although the instant motion was predicated on a different legal argument and supported by evidence not submitted on the prior cross motion, both motions essentially sought identical relief, i.e., disclosure of the plaintiff's income and assets acquired between the date of a foreign judgment of divorce and the date of commencement of this action for equitable distribution. Thus, the instant motion was, in actuality, one for leave to reargue and renew ( see Cunningham v. Diers, 14 A.D.3d 528, 529, 787 N.Y.S.2d 668;Agayeva v. KJ Shuttle Serv., 284 A.D.2d 488, 726 N.Y.S.2d 584;Cangro v. Cangro, 272 A.D.2d 286, 707 N.Y.S.2d 895;Mucciola v. City of New York, 177 A.D.2d 553, 554, 576 N.Y.S.2d 291).

Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the instant motion which was, in effect, for leave to renew. A motion for leave to renew “shall be based upon 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 DeMarquez v. Gallo, 94 A.D.3d 1039, 943 N.Y.S.2d 169;Matter of Choy v. Mai Ling Lai, 91 A.D.3d 772, 936 N.Y.S.2d 564). Although the requirement that a motion for renewal must be based on new facts is a flexible one ( see DeMarquez v. Gallo, 94 A.D.3d 1039, 943 N.Y.S.2d 169;Matter of Beren v. Beren, 92 A.D.3d 676, 677, 938 N.Y.S.2d 199), a motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, and the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the...