Opinion
July 15, 1994
Appeal from the Supreme Court, Kings County, Hurowitz, J.
Present — Pine, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Hurowitz, J.). We add only that plaintiff's failure to comply with the requirements of CPLR 3215 (e) does not warrant vacatur of the order entered October 30, 1989, which granted a default judgment in plaintiff's favor. Defendant failed to raise that issue until his second motion for renewal, made more than one year after the denial of his motion to vacate the order granting the default judgment. A motion to renew should not be granted to a party who "has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application" (Foley v. Roche, 68 A.D.2d 558, 568; see, Mid-State El. Co. v. Empire-Salina Assocs. [appeal No. 2], 190 A.D.2d 1061). On his second motion to renew, defendant sought relief on a legal theory neither advanced in his initial motion for vacatur nor in his original motion to renew. The failure by defendant to allege plaintiff's non-compliance with CPLR 3215 (e) precludes the relief he seeks.