Renewal is allowed to correct 2106 hiccups

Looking for the complete rule? This post analyzes one renewal decision on form defects. For the full practitioner’s guide to CPLR § 2221 — reargument deadlines, renewal standards, leading cases, and practice pointers — see CPLR § 2221 Motions to Reargue, Renew, and Vacate: The New York Practitioner’s Guide.

Understanding Renewal Motions for Procedural Corrections

In New York civil litigation, parties sometimes submit documents that are procedurally defective, causing courts to reject evidence that could be crucial to their case. The Second Department’s decision in Schwelnus v Urological Assoc. of L.I., P.C. clarifies an important procedural principle: courts should not rigidly deny renewal motions when parties seek to correct inadvertent procedural errors in previously submitted materials.

This case addresses a common scenario where defendants initially submitted transcripts in an inadmissible form as part of their summary judgment motion. When they later sought to renew their motion with properly formatted transcripts, the trial court denied the renewal application, reasoning that the underlying facts weren’t “new” since the transcripts existed during the original motion.

Jason Tenenbaum’s Analysis:

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; _ 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).

Key Takeaway

Courts should grant renewal motions when parties correct inadvertent procedural errors in document submission, even if the underlying facts existed during the original motion. CPLR 2221(e) should not be construed so narrowly as to prevent parties from correcting the form of their papers when they provide reasonable justification for the initial procedural defect.

Legal Update (February 2026): Since this 2012 post, CPLR 2221 governing renewal motions may have been subject to amendments or judicial interpretation updates that could affect the standards for correcting procedural defects in motion practice. Additionally, Appellate Division decisions and procedural rules regarding the submission of transcripts and evidence formatting may have evolved. Practitioners should verify current provisions of CPLR 2221 and recent case law interpretations when seeking renewal to correct procedural errors in motion submissions.

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• CPLR 2106: Expert Report Requirements (Complete Guide)
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• Renewal Under Certain Circumstances May Be Granted to Correct an Improper Affirmation, A Comprehensive Guide to CPLR 2106 Requirements
• Issues involving the granting of leave to renew when an improper affirmation instead of an affidavit is presented