Issues involving the granting of leave to renew when an improper affirmation instead of an affidavit is presentedFebruary 10, 2010

Here is an interesting case that came from the Appellate Division, Second Department today.  It comes to us as a nasty legal malpractice, matrimonial and fraud case.  The only part that is relevant to this entry is the portion that discusses when leave to renew based upon known facts is appropriate and when it is inappropriate.

Coccia v Liotti, 2010 NY Slip Op 00917 (2d Dept. 2010):

“On her appeal from the order entered May 5, 2008, the plaintiff contends that the defendant’s motion was an impermissible, successive motion for summary judgment and that, even if properly treated by the court as a motion to reargue, it should have been denied as untimely. We reject this contention. The defendant’s motion was, in effect, a motion for leave to renew and, thus, it was not subject to the same time limitations as a motion seeking reargument (see Gillman v O’Connell, 176 AD2d 305, 307). Further, the Supreme Court did not improvidently exercise its discretion in granting that branch of the motion which was, in effect, for leave to renew on the ground that it should consider the contents of the affirmation submitted on the initial cross motion, since the defendant submitted a properly notarized affidavit in support of that branch of his motion, repeating the assertions contained in the affirmation, thus correcting the inadvertent procedural error made on the initial cross motion (see Arkin v Resnick, 68 AD3d 692; DeLeonardis v Brown, 15 AD3d 525, 526; Wester v Sussman, 304 AD2d 656, 656-657; Puntino v Chin, 288 AD2d 202, 203).

However, in addition to the affidavit, the defendant proffered additional information not submitted on the initial cross motion, specifically, new evidence purportedly supporting the defendant’s contentions that he believed that there were risks involved in claiming that the husband had a significantly greater income than that which was reported on the husband’s tax returns, that the court in the underlying matrimonial action informed the parties at the start of trial that it would not award counsel fees, and that the sum of $100,000 that the plaintiff received in equitable distribution was meant to cover her counsel fees. Such additional evidence should have been disregarded by the court since the defendant failed to offer any justification for not having submitted it on the initial cross motion. While it may be within the court’s discretion to grant leave to renew upon facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434, 436; Cronwall Equities v International Links Dev. Corp., 255 AD2d 354), 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'” (Renna v Gullo, 19 AD3d 472, 473, quoting Rubinstein v Goldman, 225 AD2d 328, 329; cf. CPLR 2221[d][2] [a motion for leave to reargue “shall not include any matters of fact not offered on the prior motion”]).”

So it should be observed that: 1) The failure to utilize an affidavit as opposed to an affirmation will be forgiven; and 2) The failure to include proper documentary evidence in your first evidentiary presentation will not be as easily forgiven.

Now, assume in opposing a motion that you improperly used an affirmation instead of an affidavit; the opposing party properly objected to the form issue; and the lower court denied the underlying motion based upon your improper affirmation.  What should you do – I mean you were successful in averting an adverse summary judgment disposition.

Well, if the proponent of the motion appeals the adverse order, then you have a problem.  Thus, even though you defeated the underlying motion, you should move to renew immediately.  If you do not, then this is what will happen: Ocean Diagnostic Imaging P.C. v. General Assur. Co., 12 Misc.3d 137(A)(App. Term 2d Dept. 2006):

“On a prior appeal in this action brought by plaintiff provider to recover assigned first-party no-fault benefits, this court reversed an order denying plaintiff’s motion for summary judgment and granted plaintiff’s motion, based upon defendant insurer’s failure to demonstrate that it had mailed pre-claim requests for independent medical examinations (IMEs)….


In any event, defendant failed to show that it exercised due diligence….  Instead, it chose to await this appellate court’s ultimate determination of the appeal, which based its decision upon the infirmities in defendant’s evidentiary presentation. Particularly on a postappeal motion, a movant bears a heavy burden of showing that it was unable at any time prior to the perfection of the appeal to bring the newly proffered evidence to the attention of the motion court….”

You do not want this to happen to you.

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