Opinion
92125
Decided and Entered: July 31, 2003.
Appeal from an order of the Supreme Court (Reilly Jr., J.), entered February 19, 2002 in Schenectady County, which denied plaintiff's motion to renew.
Gina Cippitelli, Schenectady, appellant pro se.
Stephen M. Signore, County Attorney, Schenectady, for County of Schenectady, respondent.
Sugarman Law Firm L.L.P., Syracuse (Sherry R. Bruce of counsel), for Niagara Mohawk Power Corporation, respondent.
D'Agostino, Krackeler, Baynes Maguire P.C., Menands (Arete K. Sprio of counsel), for Sweet Associates, Inc., respondent.
Buttridge Hanson, Albany (Joseph W. Buttridge of counsel), for Town of Niskayuna, respondent.
Lombardi, Reinhard, Walsh Harrison P.C., Albany (Paul E. Davenport of counsel), for Jackson Demolition and another, respondents.
Before: Mercure, J.P., Carpinello, Mugglin, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Plaintiff commenced this action in December 1992, asserting causes of action in negligence, intentional tort, nuisance and trespass. Essentially, plaintiff alleged that defendants negligently operated, permitted operation or dumped waste at a landfill in the Town of Niskayuna, Schenectady County. This Court previously affirmed the dismissal of plaintiff's complaint, concluding that plaintiff willfully failed to respond to a motion to dismiss the complaint based on her noncompliance with a scheduling order ( 284 A.D.2d 823, 825, lv denied 97 N.Y.2d 606). Plaintiff thereafter moved pro se to renew (see generally Matter of Cerro v. Washington County Bd. of Supervisors, 270 A.D.2d 679, 679-680, appeal dismissed 95 N.Y.2d 887) and Supreme Court denied the motion. Plaintiff appeals.
We note that defendant Fred Jackson is deceased, and plaintiff, although notified of his death, has not moved pursuant to CPLR 1021 for a substitution.
A party seeking renewal "must demonstrate newly discovered facts to support the motion and a justifiable excuse for not initially presenting those facts to the trial court" (Matter of Dyer v. Planning Bd. of Town of Schaghticoke, 251 A.D.2d 907, 909, appeal dismissed 92 N.Y.2d 1026, lv dismissed 93 N.Y.2d 1000). Because "renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Carota v. Wu, 284 A.D.2d 614, 617 [internal quotation marks and citation omitted]), a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts (see CPLR 2221 [e] [3]; Matter of Malasky, 302 A.D.2d 761, 762). Here, plaintiff presented no new facts or newly discovered evidence that was unavailable to her at the time defendants moved to dismiss the complaint. Instead, she presented documentary evidence in support of the motion to renew, all of which could have been presented in opposition to the original motion to dismiss. Second, plaintiff failed to offer any reasonable excuse for failing to submit the evidence earlier. Accordingly, Supreme Court properly denied the motion.
Mercure, J.P., Carpinello, Mugglin, Rose and Kane, JJ., concur. ORDERED that the order is affirmed, without costs.