May v. May

• Decision Date: 03 November 2010
• Citation: 911 N.Y.S.2d 94,78 A.D.3d 667
• Parties: Joanne Cornell MAY, respondent, v. Craig MAY, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 94
78 A.D.3d 667

Joanne Cornell MAY, respondent,
v.
Craig MAY, appellant.

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

Nov. 3, 2010.

911 N.Y.S.2d 95

Mark S. Moroknek, New York, N.Y., for appellant.

Gary S. Josephs, Setauket, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.

In an action, inter alia, to recover possession of certain real property, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated April 20, 2009, as denied that branch of his motion which was for leave to renew that branch of his prior motion which was for summary judgment on his fourth counterclaim, which had been denied in an order of the same court dated December 9, 2008, and his opposition to the plaintiff's cross motion for summary judgment on the first, second, third, and fourth causes of action, which had been granted in the order dated December 9, 2008.

ORDERED that the order dated April 20, 2009, is affirmed insofar as appealed from, with costs.

Pursuant to CPLR 2221(e), 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] ). Although a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion ( see Schenectady Steel Co., Inc. v. Meyer Contr. Corp., 73 A.D.3d 1013, 1015, 903 N.Y.S.2d 58; Huma v. Patel, 68 A.D.3d 821, 822, 890 N.Y.S.2d 639; Lawman v. Gap, Inc., 38 A.D.3d 852, 832 N.Y.S.2d 670; Gadson v. New York City Hous. Auth., 263 A.D.2d 464, 691 N.Y.S.2d 914), "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' " ( Renna v. Gullo 19 A.D.3d 472, 473, 797 N.Y.S.2d 115, quoting Rubinstein v. Goldman, 225 A.D.2d 328, 329, 638 N.Y.S.2d 469; see Coccia v. Liotti, 70 A.D.3d 747, 752-753, 896 N.Y.S.2d 90; Huma v. Patel, 68 A.D.3d at 822, 890 N.Y.S.2d 639). Here, the Supreme Court

911 N.Y.S.2d 96

providently exercised its discretion in denying that branch of the defendant's motion which was for leave to renew since the defendant failed to offer a reasonable justification as to why he did not submit the subject documents in support of his...