Opinion
Index 657335/2019
03-28-2022
C. WEINBERG, Plaintiff, v. MARCH FOR SCIENCE, INC., VALORIE AQUINO, RUFUS COCHRAN, JUSTIN SHAIFER, LUCKY TRAN, MATT TRANCHIN, ASTRID WILLIS-COUNTEE Defendant. Motion Seq. No. 003
HON. FRANK NERVO, JUSTICE.
Unpublished Opinion
MOTION DATE: 01/04/2022
DECISION + ORDER ON MOTION
HON. FRANK NERVO, JUSTICE.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 28, 29, 30, 31, 32, 33, 34 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .
Defendant's counsel moves for leave to renew the Court's decision on motion sequence 002 to the extent same imposed sanctions upon defense counsel. The motion is unopposed.
A motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination…" (CPLR § 2221[e][2]). Where a motion for renewal is not based upon new evidence unavailable at the time of the original motion, and the movant fails to offer a reasonable excuse for the failure to submit evidence upon the original motion, renewal is properly denied (Schumann v. City of New York, 242 A.D.2d 616 [2d Dept 1997]). 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 (Elder v. Elder, 21 A.D.3d 1005 [2d Dept 2005]).
Here, defense counsel concedes that the facts upon which he seeks renewal were available to him at the time of the original motion. The Court finds the proffered excuse for failing to provide same, to wit, "counsels' erroneous desire to treat the motion is an expedient manner" an unreasonable basis for renewal (see NYSCEF Doc. No. 34 at p. 1). Notwithstanding, the Court deems that portion of defense counsel's motion seeking renewal based upon the prior order being issued without notice as a motion for reargument.
The purpose of reargument is to provide "a party an opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied principles of law" (Foley v. Roche, 68 A.D.2d 558, 567 [1st Dept 1979]; see CPLR § 2221[d][2]). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (id.). Nor is reargument a proper forum to present arguments different from those originally asserted (William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22 [1st Dept 1992] lv. dismissed in part and denied in part 80 N.Y.2d 1005 [1992]).
Here, the prior order imposing sanctions on defense counsel was issued sua sponte by the Court in deciding plaintiff's motion to compel depositions of defendants and plaintiff did not seek sanctions against defense counsel. 22 NYCRR 130-1.1 provides, in relevant part, that sanctions may be imposed on the Court's own initiative, after a reasonable opportunity to be heard.
Consequently, the Court finds, under these circumstances, that defense counsel should have been provided with an opportunity to be heard as to the Court's motion on sanctions, and was deprived of same (22 NYCRR 130-1.1[d]).
Accordingly, it is ORDERED that the motion is granted to the extent of granting defense counsel leave to reargue the Court's decision on motion sequence 002, limited to the issue of sanctions, and otherwise denied; and it is further
ORDERED that papers opposing sanctions, if any, shall be filed via NYSCEF, with courtesy copy to chambers via first-class mail, no later than April 22, 2022; and it is further
ORDERED that papers in support of sanctions, if any, shall be filed via NYSCEF, with courtesy copy to chambers via first-class mail, no later than April 29, 2022; and it is further
ORDERED that failure to timely file papers opposing sanctions shall constitute waiver of the opportunity to be heard on same, as afforded by 22 NYCRR 130-1.1(d), as well as waiver as to the imposition of sanctions for the reasons set forth in motion sequence 002.
This constitutes the Decision and Order of the Court.