The search for the mystical Torres, and the hunt to obtain post-appellate renewalApril 16, 2012

Abrams v Berelson, 2012 NY Slip Op 02618 (2d Dept. 2012)

Plaintiff attempted to renew a lost motion for summary judgment in a premises liability case, 12 years after the lost motion.  The Court affirmed the denial of renewal and in a 3-2 decision stated:

“Many of the efforts made by the plaintiffs and other individuals to locate Torres, which are relied upon by the dissent, occurred after the defendant’s motion for summary judgment was decided, and, therefore, do not constitute reasonable justification for their failure to present Torres’ affidavit “on the prior motion” (CPLR 2221[e][3]). Moreover, the plaintiffs, who did not move to vacate the judgment until six months after locating Torres, failed to meet their “heavy burden” of showing due diligence in presenting the new evidence to the Supreme Court once it was obtained”

The dissent is interesting, and even held that Plaintiff satisfied the following:

“Pursuant to CPLR 2221(e), a motion for leave to renew 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'” (Andrews v New York City Hous. Auth., 90 AD3d 962, 963, quoting CPLR 2221[e][2], [3]). “[O]n [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty” (Andrews v New York City Hous. Auth., 90 AD3d at 963 [internal quotation marks omitted]; see Estate of Essig v 5670 58 St. Holding Corp., 66 AD3d 822, 823; Levitt v County of Suffolk, 166 AD2d 421, 423). ” A motion for leave to renew is addressed to the sound discretion of the court'” (Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 100, quoting Matheus v Weiss, 20 AD3d 454, 454—455; see Lardo v Rivlab Transp. Corp., 46 AD3d 759, 759; Mi Ja Lee v Glicksman, 14 AD3d 669, 670).”