Opinion
2011-12-27
Brenda ANDREWS, etc., et al., appellants, v. NEW YORK CITY HOUSING AUTHORITY, respondent.
The Ashley Law Firm, PLLC (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for appellants. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Herzfeld & Rubin, P.C. [Miriam Skolnik] of counsel), for respondent.
The Ashley Law Firm, PLLC (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for appellants. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Herzfeld & Rubin, P.C. [Miriam Skolnik] of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 11, 2010, which denied that branch of their motion which was for leave to renew their opposition to the defendant's prior motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
By order dated March 18, 2008, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint. By decision and order dated October 6, 2009, this Court reversed that order and granted the defendant's motion for summary judgment ( see Andrews v. New York City Hous. Authority., 66 A.D.3d 619, 887 N.Y.S.2d 180). In the order appealed from here, the Supreme Court denied that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendant's prior motion for summary judgment. We affirm.
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] ). “ ‘[O]n [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty’ ” ( Estate of Essig v. 5670 58 St. Holding Corp., 66 A.D.3d 822, 823, 887 N.Y.S.2d 244 [emphasis omitted], quoting Levitt v. County of Suffolk, 166 A.D.2d 421, 423, 560 N.Y.S.2d 487). 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, 472, 797 N.Y.S.2d 115, quoting Rubinstein v. Goldman, 225 A.D.2d 328, 329, 638 N.Y.S.2d 469).
Here, the plaintiffs failed to meet their “heavy burden” of showing due diligence ( Estate of Essig v. 5670 58 St. Holding Corp., 66 A.D.3d at 823, 887 N.Y.S.2d 244; see Zarecki & Assoc., LLC v. Ross, 50 A.D.3d 679, 680, 854 N.Y.S.2d 527; see also Ferdico v. Zweig, 82 A.D.3d 1151, 1152, 919 N.Y.S.2d 521; Elder v. Elder, 21 A.D.3d 1055, 1056, 802 N.Y.S.2d 457; Renna v. Gullo, 19 A.D.3d at 473, 797 N.Y.S.2d 115; Yarde v. New York City Tr. Auth., 4 A.D.3d 352, 353, 771 N.Y.S.2d 185; Welch Foods v. Wilson, 247 A.D.2d 830, 830–831, 669 N.Y.S.2d 109; Levitt v. County of Suffolk, 166 A.D.2d at 423, 560 N.Y.S.2d 487; City of White Plains v. Deruvo, 159 A.D.2d 534, 534, 552 N.Y.S.2d 399). Accordingly, the Supreme Court properly denied that branch of the plaintiffs' motion which was for leave to renew.