Opinion
06-21-2016
AMTRUST–NP SFR VENTURE, LLC, Plaintiff–Respondent, v. James VAZQUEZ, also known as James Vasquez, Defendant–Appellant, City of New York Environmental Control Board, et al., Defendants.
Steven W. Stutman, Melville (Douglas M. Jones of counsel), for appellant. Houser & Allison, APC, New York (Jacqueline Muratore of counsel), for respondent.
Steven W. Stutman, Melville (Douglas M. Jones of counsel), for appellant.
Houser & Allison, APC, New York (Jacqueline Muratore of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Joan M. Kenny, J.), entered May 15, 2015, which, insofar as appealable, denied defendant's motion for renewal of a prior order, same court and Justice, entered February 10, 2015, granting plaintiff's motion for summary judgment, striking defendant's answer and counterclaims and appointing a referee to compute the sums due and owing to plaintiff under the subject note and mortgage, unanimously affirmed, without costs.
The court properly denied defendant's motion to renew. The affidavit of Stephen Dibert, and the additional documents attached, particularly the new purported copy of the note, were properly rejected by the court in that they were submitted for the first time in defendant's reply papers on the motion to renew and reargue, and plaintiff had no opportunity to respond to them (see All State Flooring Distribs., L.P. v. MD Floors, LLC, 131 A.D.3d 834, 835–836, 16 N.Y.S.3d 539 [1st Dept.2015] ; Dannasch v. Bifulco, 184 A.D.2d 415, 416–417, 585 N.Y.S.2d 360 [1st Dept.1992] ). The court also properly denied defendant's motion on the ground that he offered no justification whatsoever as to why he did not obtain the new evidence in time to submit it in opposition to plaintiff's original motion, and did not assert that he made any effort, let alone a diligent effort, to obtain this new evidence, which was readily available (see Altschuler v. Jobman 478/480, LLC., 135 A.D.3d 439, 441, 22 N.Y.S.3d 427 [1st Dept.2016]; Queens Unit Venture, LLC v. Tyson Ct. Owners Corp., 111 A.D.3d 552, 975 N.Y.S.2d 57 [1st Dept.2013] ; compare Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 720 N.Y.S.2d 487 [1st Dept.2001] ).
This Court previously dismissed so much of this appeal as was based on the motion court's denial of defendant's motion to reargue (see order M–4360, 2015 WL 7433661, entered November 24, 2015), which is not appealable. In light of the dismissal of the appeal, we reject defendant's remaining arguments.
MAZZARELLI, J.P., ANDRIAS, SAXE, GISCHE, KAHN, JJ., concur.