Opinion
2020–00719 Index No. 55679/16
10-13-2021
VILLAGE OF DOBBS FERRY, respondent, v. LANDING ON THE WATER AT DOBBS FERRY HOMEOWNERS ASSOCIATION, INC., appellant.
Braverman Greenspun, P.C., New York, N.Y. (Jon Kolbrener of counsel), for appellant. Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Doreen Klein of counsel), for respondent.
Braverman Greenspun, P.C., New York, N.Y. (Jon Kolbrener of counsel), for appellant.
Harris Beach PLLC, White Plains, N.Y. (Darius P. Chafizadeh and Doreen Klein of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property and for injunctive relief, the defendant appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated December 31, 2019. The order denied the defendant's motion for leave to renew its prior motion for summary judgment dismissing the complaint, on its counterclaims, and, in effect, declaring that the subject conservation easement does not exist, which had been denied in an order of the same court dated March 29, 2019, and for leave to renew its opposition to those branches of the plaintiff's prior motion which were for summary judgment on the first and second causes of action, dismissing the defendant's first counterclaim, and, in effect, declaring that the subject conservation easement exists, which had been granted in the order dated March 29, 2019.
ORDERED that the order dated December 31, 2019, is affirmed, with costs.
A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2] ). Such a motion shall contain reasonable justification for the failure to present such facts on the prior motion (see id. 2221[e][3]). 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 (see Federal Natl. Mtge. Assn. v. Sakizada, 153 A.D.3d 1236, 60 N.Y.S.3d 466 ; Bazile v. City of New York, 94 A.D.3d 929, 943 N.Y.S.2d 131 ).
Here, the Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for leave to renew its prior motion for summary judgment dismissing the complaint, on its counterclaims, and, in effect, declaring that the subject conservation easement does not exist, and its opposition to those branches of the plaintiff's prior motion which were for summary judgment on the first and second causes of action, dismissing the defendant's first counterclaim, and, in effect, declaring that the subject conservation easement exists. The alleged new evidence tendered by the defendant in support of renewal would not have changed the prior determination inasmuch as the "new" map, upon which the defendant relied, was neither recorded nor official, did not set forth any means of access by the plaintiff's residents to the waterfront parcel, and, in any event, was superseded by the amended easement dated less than two months later (see CPLR 2221[e][2] ). Further, the defendant failed to show that the new evidence could not have been discovered earlier through the exercise of due diligence (see Gahagan v. Gahagan, 172 A.D.3d 1008, 1010, 101 N.Y.S.3d 116 ; Priant v. New York City Tr. Auth., 142 A.D.3d 491, 492, 36 N.Y.S.3d 201 ). The defendant provided no reasonable justification for failing to present that evidence on its prior motion and in opposition to the plaintiff's prior motion (see CPLR 2221[e][2] ; Gahagan v. Gahagan, 172 A.D.3d at 1010, 101 N.Y.S.3d 116 ).
AUSTIN, J.P., HINDS–RADIX, CONNOLLY and WOOTEN, JJ., concur.