Opinion
2020–01035 Index No. 523164/18
11-15-2023
Elliot GROMAN, et al., respondents, v. Alex FLEYSHMAKHER, appellant.
Law Offices of Jaime Lathrop, P.C., Brooklyn, NY, for appellant. Berg & David, PLLC, Brooklyn, NY (Sholom Wohlgelernter and Abraham David of counsel), for respondents.
Law Offices of Jaime Lathrop, P.C., Brooklyn, NY, for appellant.
Berg & David, PLLC, Brooklyn, NY (Sholom Wohlgelernter and Abraham David of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., VALERIE BRATHWAITE NELSON, CHERYL E. CHAMBERS, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover on promissory notes, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendant appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated January 7, 2020. The order, insofar as appealed from, denied that branch of the defendant's motion which was for leave to renew his opposition to the plaintiffs’ motion for summary judgment in lieu of complaint, which had been granted in an order of the same court dated May 13, 2019.
ORDERED that the order dated January 7, 2020, is affirmed insofar as appealed from, with costs. On January 13, 2014, and January 1, 2015, the defendant executed promissory notes in favor of the plaintiffs. In November 2018, the plaintiffs commenced this action to recover on the notes by motion for summary judgment in lieu of complaint pursuant to CPLR 3213. In an order dated May 13, 2019, the Supreme Court granted the motion for summary judgment in lieu of complaint, determining, inter alia, that the defendant had failed to raise a triable issue of fact with respect to his defense of partial payment by submitting sufficient evidence of payments allegedly made on the notes. The defendant subsequently moved, among other things, for leave to renew his opposition to the plaintiffs’ motion. In an order dated January 7, 2020, the court, inter alia, denied that branch of the defendant's motion which was for leave to renew. The defendant appeals.
"Pursuant to CPLR 2221, a motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’ ( CPLR 2221[e][2] ) and ‘shall contain reasonable justification for the failure to present such facts on the prior motion’ ( CPLR 2221[e][3] )" ( Deutsche Bank Natl. Trust Co. v. Galloway, 214 A.D.3d 625, 626, 182 N.Y.S.3d 922 [internal quotation marks omitted]; see Ferraro Foods, Inc. v. Guyon, Inc., 165 A.D.3d 628, 630, 85 N.Y.S.3d 479 ). "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" ( 25 Bay Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d 668, 674, 148 N.Y.S.3d 484 [internal quotation marks omitted]; see MTGLQ Invs., L.P. v. Balan, 203 A.D.3d 717, 718, 160 N.Y.S.3d 619 ; Deutsche Bank Natl. Trust Co. v. Elshiekh, 179 A.D.3d 1017, 1020, 118 N.Y.S.3d 183 ; Eskenazi v. Mackoul, 92 A.D.3d 828, 829, 939 N.Y.S.2d 484 ). "While a court has discretion to 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" ( 25 Bay Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d at 674, 148 N.Y.S.3d 484 [internal quotation marks omitted]; see Carmike Holding I, LLC v. Smith, 180 A.D.3d 744, 747, 120 N.Y.S.3d 141 ; Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d 772, 773–774, 111 N.Y.S.3d 94 ). "When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" ( 25 Bay Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d at 674, 148 N.Y.S.3d 484 [internal quotation marks omitted]; see Carmike Holding I, LLC v. Smith, 180 A.D.3d at 747, 120 N.Y.S.3d 141 ; Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d at 774, 111 N.Y.S.3d 94 ).
Here, the defendant failed to offer a reasonable justification for failing to present the purported new evidence of repayment, consisting of images of canceled checks from a bank account he controlled, in opposition to the plaintiffs’ original motion. Accordingly, the Supreme Court properly denied that branch of his motion which was for leave to renew his opposition to the plaintiffs’ motion for summary judgment in lieu of complaint (see MTGLQ Invs., L.P. v. Balan, 203 A.D.3d at 719, 160 N.Y.S.3d 619 ; Carmike Holding I, LLC v. Smith, 180 A.D.3d at 747, 120 N.Y.S.3d 141 ; Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d at 775, 111 N.Y.S.3d 94 ).
In light of our determination, we need not reach the defendant's remaining contentions.
CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.