Opinion
Index No. 651198/2023 Motion Seq. No. 005
06-16-2023
ARIEL FEIN, SARAH KRUGER, ALAN FEIN, ASMSY, LLC, A NY LIMITED LIABILITY CMPANY Petitioners, v. IRVING LANGER, Respondent.
Unpublished Opinion
PRESENT: HON. JENNIFER G. SCHECTER JUSTICE
DECISION + ORDER ON MOTION
Jennifer G. Schecter, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 005) 91, 92, 93, 94, 95, 96, 97, 98 were read on this motion to/for RENEWAL_.
There is no basis for reargument since respondent does not identify anything that the court overlooked on the underlying motion (see William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22, 27-28 [1st Dept 1992]). Nor is there a basis for renewal based on the settlement agreement (Dkt. 93). Respondent does not proffer any reasonable justification for why he did not or could not have submitted it on the prior motion (see Abu Dhabi Commercial Bank, P.J.S.C. v Credit Suisse Sec. (USA) LLC, 114 A.D.3d 432, 433 [1st Dept 2014]). His excuses-that he forgot about it, that he may not have signed it, and that it may be unenforceable-do not warrant renewal. On the contrary, if for some reason he is not bound by the settlement agreement then it could not possibly support renewal since it would not change the court's prior determination (see Shawe v Kramer Levin Naftalis & Frankel LLP, 167 A.D.3d 481 [1st Dept 2018|). And, if he did sign it, there is simply no excuse for not submitting it, particularly given the import of the prior proceedings in the underlying motion papers.
The argument that respondent did not realize the potential import of the settlement agreement until after the March 10, 2023 oral argument is not a reasonable justification (see American Audio Serv. Bur. Inc. v AT & T Corp., 33 A.D.3d 473, 476 [1st Dept 2006]). "Renewal is not available as a 'second chance' for parties who have not exercised due diligence in making their first factual presentation" (Chelsea Piers Mgt. v Forest Elec. Corp., 281 A.D.2d 252 [1st Dept 2001]). In any event, there was ample time between the March 10 oral argument on the preliminary injunction motion and when the court issued a final ruling on the petition on April 26, 2023-during which time the parties submitted further briefing-for respondent to have raised this issue (see Abu Dhabi Commercial Bank, P.J.S.C., 114 A.D.3d at 433).
Given the denial of this motion the fee application will be supplemented (see Dkt. 83 at 2).
Accordingly, it is ORDERED that respondent's motion for reargument and renewal is DENIED. And it is further ORDERED that petitioners may supplement their fee application by June 22, 2023, to which objections may be filed by June 29, 2023.