Opinion
2019–03356 Index No. 502951/16
08-12-2020
Leonid TYLMAN, et al., Appellants, v. Andrey YANOFF, et al., Respondents.
Lumen Law, New York, N.Y. (Mikhail Ratner of counsel), for appellants. Kalavesios Law Group PLLC, Brooklyn, N.Y. (Ted Kalavesios and Susan R. Nudelman of counsel), for respondents.
Lumen Law, New York, N.Y. (Mikhail Ratner of counsel), for appellants.
Kalavesios Law Group PLLC, Brooklyn, N.Y. (Ted Kalavesios and Susan R. Nudelman of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for fraud and unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated January 10, 2019. The order denied the plaintiffs' motion for leave to reargue and renew their opposition to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, which had been granted in an order of the same court dated August 3, 2017.
ORDERED that the appeal from so much of the order dated January 10, 2019, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed; and it is further,
ORDERED that the order dated January 10, 2019, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
As a threshold matter, no appeal lies from an order denying reargument (see MP v. Davidsohn, 169 A.D.3d 788, 789, 93 N.Y.S.3d 683 ). Accordingly, the appeal from so much of the order as denied that branch of the plaintiffs' motion which was for leave to reargue must be dismissed (see id. at 789, 93 N.Y.S.3d 683 ).
Pursuant to CPLR 2221(e), a motion for leave to renew, inter alia, "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" ( Krobath v. South Nassau Communities Hosp., 178 A.D.3d 810, 810–811, 111 N.Y.S.3d 888 [internal quotation marks omitted] ). "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" ( Worrell v. Parkway Estates, LLC, 43 A.D.3d 436, 437, 840 N.Y.S.2d 817 ; see Carmike Holding I, LLC v. Smith, 180 A.D.3d 744, 120 N.Y.S.3d 141 ; Krobath v. South Nassau Communities Hosp., 178 A.D.3d at 811, 111 N.Y.S.3d 888 ).
Here, we agree with the Supreme Court's determination that the plaintiffs did not provide a reasonable justification for their failure to present the alleged new evidence in opposition to the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint (see Krobath v. South Nassau Communities Hosp., 178 A.D.3d at 811, 111 N.Y.S.3d 888 ; U.S. Bank N.A. v. Ahmed, 174 A.D.3d 661, 665, 106 N.Y.S.3d 78 ). Accordingly, the court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew their opposition to the defendants' motion to dismiss the complaint.
RIVERA, J.P., CHAMBERS, AUSTIN and WOOTEN, JJ., concur.