Opinion
11-02-2016
Erzulie PRUDENCE, respondent, v. Shawette WHITE, et al., appellants.
Auciello Law Group, P.C., Brooklyn, NY (Anthony J. Auciello of counsel), for appellants. Bruce S. Reznick, P.C., Brooklyn, NY (Thomas Torto and Jeremy M. Weg of counsel), for respondent.
Auciello Law Group, P.C., Brooklyn, NY (Anthony J. Auciello of counsel), for appellants.
Bruce S. Reznick, P.C., Brooklyn, NY (Thomas Torto and Jeremy M. Weg of counsel), for respondent.
In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated November 28, 2014, which denied their motion, in effect, for leave to renew their prior motion, in effect, pursuant to CPLR 5015(a)(1) to vacate an order of the same court (Baynes, J.) dated June 8, 2012, and a clerk's judgment entered May 16, 2013.
ORDERED that the order dated November 28, 2014, is affirmed, with costs.
“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” (Elder v. Elder, 21 A.D.3d 1055, 1055, 802 N.Y.S.2d 457 ; see Rose v. Levine, 98 A.D.3d 1015, 1015–1016, 951 N.Y.S.2d 880 ; Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146 ). A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and the motion must also contain a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e] ; Kamdem–Ouaffo v. Pepsico, Inc., 133 A.D.3d 828, 829, 21 N.Y.S.3d 154 ; United Med. Assoc., PLLC v. Seneca Ins. Co., Inc., 125 A.D.3d 959, 960–961, 5 N.Y.S.3d 164 ; Okumus v. Living Room Steak House, Inc., 112 A.D.3d 799, 800, 977 N.Y.S.2d 340 ).
Here, the Supreme Court providently exercised its discretion in denying the defendants' motion, in effect, for leave to renew their prior motion, in effect, pursuant to CPLR 5015(a)(1) to vacate an order dated June 8, 2012, and a judgment entered May 16, 2013. The defendants failed to offer a reasonable justification as to why the newly submitted evidence, which was available to them when they made their prior motion, was not submitted at the time of the prior motion. Furthermore, the newly submitted evidence would not have changed the prior determination (see Kamdem–Ouaffo v. Pepsico, Inc., 133 A.D.3d at 829, 21 N.Y.S.3d 154 ; Ayala v. Gonzalez, 129 A.D.3d 874, 875, 10 N.Y.S.3d 452 ; United Med. Assoc., PLLC v. Seneca Ins. Co., Inc., 125 A.D.3d at 961, 5 N.Y.S.3d 164 ).
BALKIN, J.P., CHAMBERS, ROMAN, DUFFY and BARROS, JJ., concur.