The Law Office of Jason Tenenbaum, P.C.

Here is a procedural one for you

Dookhie v Woo, 2020 NY Slip Op 00975 (1st Dept. 2020)

“A party’s submission of new evidence or argument in reply on the underlying motion constitutes reasonable justification for granting renewal (see Schenectady Steel Co., Inc. v Meyer Contr. Corp., 73 AD3d 1013, 1015-1016 [2d Dept 2010])”

When is reargument granted?

Budoff v City of New York, 2018 NY Slip Op 05817 (2d Dept. 2018)

“As the Supreme Court reviewed the merits of the plaintiff’s contentions raised in his motion for leave to reargue, “the court, in effect, granted reargument and adhered to its original determination”…

Renewal granted

Provek Plus, Inc. v Tri-State Consumer Ins. Co., 2016 NY Slip Op 50870(U)(App. Term 2d Dept. 2015)

“While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585-586 [2012]). Here, defendant submitted an affidavit explaining that the affidavit of defendant’s mail clerk, which was submitted in support of defendant’s prior motion for summary judgment, contained an inadvertent typographical error with respect to the date on which the mail clerk was first employed by defendant. As a result, leave to renew should have been granted (see Miller v Duffy, 162 AD2d 438 [1990]; Olean Urban Renewal Agency v Herman, 101 AD2d 712 [*2][1984]).”

That does happen every so often.  A name, date or other information inadvertantly lands in an affidavit.  Parties try to jump on the defect and state that the world is over due to that mistake.  The Court here gave the carrier a second chance, and rightfully so.  Nobody is perfect.

Renewal and reargument gets the job done

One to One v. State Farm, Index #: 79955/10 (Civ. Ct. Bronx Co. 2013)(Gonzalez, JSC)

In the normal and ordinary course of business in no-fault Special Term, expediency sometimes substitutes for accuracy and due deliberation of motion decisions.   I get it.  If there are 100 motions that are being argued on a daily basis it is difficult to take the papers on submission and to fully read them.

In this instance, renewal and reargument and probably the best tools that are out there.  These motions are submitted and read.  One judge in an order admitted this in her order when granting reargument and granting my client summary judgment on an acupuncture fee schedule issue.  The caevat is that if you put garbage in, you will garbage out on a renewal and reargument motion.

Here is a great example of this on an 8 unit multiple provider reargument/renewal motion.

Motion to renew and then some

DeMarquez v Gallo, 2012 NY Slip Op 03130 (2d Dept. 2012)

How many times have you seen this?

“[p]laintiffs’ motion to restore the action to the trial calendar is granted, and the action is restored to the trial calendar for an immediate trial without any further motion practice related to the restoration of the action.”

1) “After the plaintiff filed a note of issue, on May 15, 2001, the parties appeared in the jury scheduling part to select a jury. On that day, the Supreme Court directed the transfer of the action to Civil Court, Kings County, pursuant to CPLR 325(d). Due to a clerical error, the case was inadvertently marked off the trial calendar rather than transferred to the Civil Court.”

2) “Upon discovering this clerical error, the plaintiff moved to restore the case to the trial calendar. The Supreme Court denied that motion in an order dated August 18, 2004. The plaintiff appealed and, by decision and order dated May 23, 2006, this Court reversed the order dated August 18, 2004, vacated the dismissal of the action, and restored the action to the trial calendar (see DeMarquez v Gallo, 29 AD3d 853).”

3) “Subsequent to this Court’s decision and order dated May 23, 2006, restoring the action to the trial calendar, the plaintiff was erroneously informed by a clerk of the Supreme Court that she had to move again to restore the action. As a result, the plaintiff made a subsequent motion to restore the action, relying upon this Court’s decision and order dated May 23, 2006. The Supreme Court denied the plaintiff’s motion in an order dated August 4, 2009. [*2]

After first moving unsuccessfully to reargue the motion to restore, the plaintiff moved for leave to renew her motion to restore the action to the trial calendar. In the order appealed from, the Supreme Court denied the plaintiff’s motion for leave to renew. The plaintiff appeals and we reverse.

[discussion of leave to renew]

This one amazed me when I read it.  Does anyone on “motion day” in Supreme Kings spend the time to read the motion papers?  Or, is it more important to shoot our SFO’s after “oral argument” and “due deliberation”?  Just a thought,

Renewal is allowed to correct 2106 hiccups

Schwelnus v Urological Assoc. of L.I., P.C., 2012 NY Slip Op 02858 (2d Dept. 2012)

The Supreme Court improvidently exercised its discretion in denying the defendants’ motion for leave to renew their motion for summary judgment dismissing the complaint on the ground that the defendants’ motion was not based upon new facts not offered on the prior motion. CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389; [*2]see also Coccia v Liotti, 70 AD3d 747; Arkin v Resnick, 68 AD3d 692). The defendants corrected their inadvertent procedural errors with respect to the transcripts and provided a reasonable justification for failing to present the transcripts in admissible form in support of their motion for summary judgment such that leave to renew should have been granted (see Darwick v Paternoster, 56 AD3d 714; DeLeonardis v Brown, 15 AD3d 525).

The search for the mystical Torres, and the hunt to obtain post-appellate renewal

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).”

Renewal granted and Plaintiff loses.

Ashraf Ashour Physical Therapy, P.C. v Interboro Mut. Indem. Ins. Co., 2012 NY Slip Op 50491(U)(App. Term 1st Dept. 2012)

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated October 12, 2011, which denied its motion to renew its prior motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), dated October 12, 2011, reversed, without costs, renewal granted, and upon renewal, defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

Defendant’s motion to renew should have been granted, where defendant offered a reasonable excuse (viz., law office failure) for its inadvertent submission of motion papers relating to a companion case, provided the correct moving papers, and demonstrated the merit of its defenses (see Joseph v Bd. of Educ. of City of New York, 91 AD3d 528 [2012]; Scannell v Mt. Sinai Med. Ctr., 256 AD2d 214 [1998]). On renewal, defendant demonstrated entitlement to summary judgment dismissing plaintiff’s complaint seeking recovery of first-party no-fault benefits. In opposition, plaintiff failed to raise an issue of fact requiring a trial of any of plaintiff’s no-fault claims. In this connection, plaintiff did not refute defendant’s showing that the claim for $177.37 was paid in full, rebut the independent medical examination (IME) report submitted by defendant with respect to the claim for $160.74, or seriously challenge defendant’s compliance with the workers’ compensation fee schedules applicable to the remaining claims.

This was my case.

2221(a) motion appropriate to deal with motion to vacate sua sponte order

Tangalin v MTA Long Is. Bus, 2012 NY Slip Op 01239 (2d Dept. 2012)

“We agree with the appellants’ contention that the Supreme Court erroneously treated their motion to vacate so much of an order as directed them to produce certain portions of the Bus Operator Training Participant’s Guide of the defendant MTA Long Island Bus (hereinafter the Guide) as one for leave to reargue. Moreover, since that order was not appealable as of right because it did not decide a motion made on notice, it was procedurally proper for the appellant to move pursuant to CPLR 2221(a) to vacate the disputed portion of the order (see Mega Constr. Corp. v Benson Park Assoc., LLC, 60 AD3d 826, 827; Koczen v VMR Corp., 300 AD2d 285; Pagan v Penthouse Mfg. Co., 121 AD2d 374).”

Plaintiff given a second chance to correct the form of his papers

Ferrara v De Ming Song, 2010 NY Slip Op 51472(U)(App. Term 2d Dept. 2010)

“[t]he affirmed reports of plaintiff’s medical provider in Florida, submitted in opposition to defendant’s motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.”

…

Contrary to defendant’s contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff’s motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]).