Issues involving the granting of leave to renew when an improper affirmation instead of an affidavit is presented

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.

Proving standing without an assignment?

Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar.  For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense has scored major victories at the Appellate Division, Second Department.

The matter of IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 2009 NY Slip Op 09395 (1st Dept. 2009), takes away some steam from this defense as set forth herein:

“Plaintiff’s original motion for summary judgment was denied because of the court’s concern that the Euroclear statement and other documents suggested that BB Securities, rather than plaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew, submitting an affidavit by BB’s managing director, clearly averring that it held the note solely as custodian for plaintiff, as well as an assignment agreement between BB and plaintiff, establishing the latter’s exclusive entitlement to sue under the note. Under these circumstances, the court providently exercised its discretion in granting renewal in the interest of justice (see Garner v Latimer, 306 AD2d 209 [2003]). The additional affidavit by an officer familiar with the corporate records, accompanying a true copy of the assignment agreement, was admissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), and established plaintiff’s entitlement to summary judgment.

In view of our finding that summary judgment was correctly granted upon renewal, we dismiss plaintiff’s appeal of the denial of its original motion for summary judgment as academic. However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading’s promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants’ contention, the affidavit of a corporate officer with personal knowledge, together with [*2]authenticated business records, is admissible in support of a motion for summary judgment (see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]).”

This case also has a rare appearance of the “interest of justice” exception to the general rule that renewal is not allowed unless new facts are presented.  It also has a standard business records discussion.  I will cross-link this on the evidence blog.

Renewal under certain circumstances may be granted to correct an improper affirmation

What happens if you draft an affirmation that is missing the magical “2106” language and the defect is properly objected to?  You lose.

Can you move to renew?  As we learn in Arkin v Resnick 8 2009 NY Slip Op 08980 (2d Dept. 2009), the answer is a qualified “yes”.

“The motion papers included a document by their medical expert, Dr. Alan Mensch, that was labeled as an “affirmation,” but was prefaced with a statement that he had been “duly sworn.” However, the document did not have either a jurat or a statement pursuant to CPLR 2106 that Dr. Mensch affirmed the statement to be true under the penalties of perjury.  By order dated December 30, 2007, the Supreme Court denied the motion on the ground that the affirmation did not comply with CPLR 2106 or 2309, and thus, the movants failed to proffer evidence in admissible form. In support of their motion, in effect, for leave to renew, the movants submitted a substantively identical affirmation with the proper language required by CPLR 2106. By order dated June 9, 2008, the court, upon renewal, granted the motion for summary judgment dismissing the complaint as to the movants, and on July 22, 2008, entered judgment thereon. Contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in granting the motion for leave to renew, allowing the movants the opportunity to correct their inadvertent mistake by submitting an identical affirmation in the proper form (see CPLR 2201, 2221[e]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391; Acosta v Rubin, 2 AD3d 657, 658; DeLeonardis v Brown, 15 AD3d 525, 526; Baluchinsky v General Motors Corp., 248 AD2d 574, 575).”

I am not sure we would have the same result if a chiropractor improperly affirmed a document and, following an adverse result, the “losing” attorney sought leave to renew in order to place the document in affidavit form.  This would not be inadvertent.  Rather, it would be considered a strategical gaff, which would not lend itself to relief through a motion to renew.

Motion to Reargue – the 30 day period is not absolute

From a procedural standpoint, a question that has arisen is whether a motion seeking leave to reargue or, in certain cases, leave to renew is timely made. Following the 1999 amendment to the statute, there has been debate as to whether the 30-day period to make the motion will be tolled when a timely notice of appeal is filed. This was answered in the negative a few times, but the recent trend has been to answer this inquiry in the affirmative. A recent case highlights this point.

Terio v. Spodek, 2009 N.Y. Slip Op. 04412 (2d Dept. 2009)

“Contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in granting that branch of the motion…which was for leave to reargue. Reich’s appeal from the Supreme Court’s order dated December 17, 2007, was pending and unperfected as of the time that the motion for reargument was made. Under these circumstances, the Supreme Court providently entertained that branch of Reich’s motion which was for leave to reargue notwithstanding that it was made beyond the 30-day limit set forth in CPLR 2221(d)(3)”

It follows that as long as a Notice of Appeal has been filed and the appellate brief is unperfected, the 30-day time period to move to reargue or to take advantage of the “change in law” provision in the leave to renew statute remains tolled.