Opinion
2014-01-29
JRP HOLDING, INC., et al., appellants, v. Jonathan PRATT, et al., respondents, et al., defendants.
Sanford F. Young, P.C., New York, N.Y., for appellants. Davidoff Hutcher & Citron, LLP, Garden City, N.Y. (Jonathan M. Cader of counsel), for respondents.
Sanford F. Young, P.C., New York, N.Y., for appellants. Davidoff Hutcher & Citron, LLP, Garden City, N.Y. (Jonathan M. Cader of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Diamond, J.), dated March 7, 2012, which granted that branch of the motion of the defendants Jonathan Pratt, Jonathan Pratt doing business as Float Eyewear, Inc., Just In Optical, Inc., and Float Eyewear, Inc., which was pursuant to CPLR 2221 for leave to renew their opposition to the plaintiffs' motion for summary judgment, and, upon renewal, vacated so much of an order of the same court dated September 27, 2011, as granted those branches of the plaintiffs' motion which were for summary judgment on the cause of action to recover damages for breach of contract insofar as asserted against the defendant Just In Optical, Inc., and for summary judgment on the causes of action to recover damages for unjust enrichment and conversion insofar as asserted against the defendants Jonathan Pratt, Jonathan Pratt doing business as Float Eyewear, Inc., and Float Eyewear, Inc., and thereupon, in effect, denied those branches of the motion, and (2), as limited by their brief, from so much of an order of the same court entered May 18, 2012, as, upon reargument, adhered to the original determination in the order dated March 7, 2012.
ORDERED that the appeal from the order dated March 7, 2012, is dismissed, as that order was superseded by the order entered May 18, 2012, made upon reargument; and it is further,
ORDERED that the order entered May 18, 2012, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants Jonathan Pratt, Jonathan Pratt doing business as Float Eyewear, Inc., Just In Optical, Inc., and Float Eyewear, Inc.
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]; see Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194; Ramirez v. Khan, 60 A.D.3d 748, 874 N.Y.S.2d 257). “The requirement that a motion for renewal be based on new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion ‘if the movant offers a reasonable excuse for the failure to present those facts on the prior motion’ ” (Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194, quoting Matter of Surdo v. Levittown Pub. School Dist., 41 A.D.3d 486, 486, 837 N.Y.S.2d 315).
Here, the Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants Jonathan Pratt, Jonathan Pratt doing business as Float Eyewear, Inc., Just In Optical, Inc., and Float Eyewear, Inc. (hereinafter collectively the respondents), which was pursuant to CPLR 2221 for leave to renew their opposition to the plaintiffs' motion for summary judgment. Under the circumstances of this case, the respondents demonstrated a reasonable justification for failing to present certain evidence on the prior motion ( see De Cicco v. Longendyke, 37 A.D.3d 934, 935, 829 N.Y.S.2d 284). Moreover, upon renewal, the Supreme Court properly determined that triable issues of fact exist with respect to, inter alia, the validity of the parties' surrender and termination agreement ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The plaintiffs' remaining contention is without merit. RIVERA, J.P., HALL, ROMAN and MILLER, JJ., concur.