Bellofatto v Bellofatto

[*1] Bellofatto v Bellofatto 2005 NY Slip Op 51198(U) Decided on July 22, 2005 Supreme Court, Putnam County O'Rourke, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 22, 2005
Supreme Court, Putnam County

STEPHANIE BELLOFATTO, Plaintiff,

against

WILLIAM BELLOFATTO, Defendant.



143/05



Victor G. Grossman, Esq.

Atty. For Pltf.

9 Fair Street

Carmel, New York 10512

John M. Ruti, Esq.

Atty. For Deft.

100 South Bedford Road

Mount Kisco, New York 10549

Andrew P. O'rourke, J.

Upon the foregoing papers, it is Ordered that plaintiff's motion pursuant to CPLR 2221 is denied.

Initially, the Court notes that plaintiff properly should have annexed a complete copy of the underlying papers to her instant motion. See Lower Main Street LLC v. Thomas Re & Paterners, (Alpert, J.), N.Y.L.J., April 5, 2005, p. 19, col. 3, citing generally Gerhardt v. New York City Transit Authority, 8 AD3d 427 (2nd Dept. 2004); Sheedy v. Pataki, 236 AD2d 92, 97 (3rd [*2]Dept. 1997), lv. to app. den. 91 NY2d 805 (1998).

Secondly, plaintiff has failed to demonstrate that this Court, in reaching its prior 17-page Decision and Order, had misapprehended any of the relevant facts or had misapplied any controlling principal of law. See CPLR 2221, subd. (d), par. 2; Pro Brokerage Inc. v. Home Insurance Co., Inc., 99 AD2d 971 (1st Dept. 1984); Foley v. Roche, 68 AD2d 558, 567 (1st Dept. 1979). Moreover, a motion for reargument preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original motion, see Spatola v. Tarcher, 293 AD2d 523 (2nd Dept. 2002); Lopez v. New York City Housing Authority, 7 Misc 3d 1006(A) (N.Y.Sup. Ct. 2005),

To the extent that petitioner's motion should more properly have been denominated one for renewal the motion would still have to be rejected. An application for renewal "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." CPLR 2221, subd. (e), paras. 2, 3. "Renewal is granted sparingly, and only in cases where there exists a valid excuse for failing to submit additional facts on the original application." Matter of Beiny v. Wynyard, 132 AD2d 190 (1st Dept. 1987), app. dsmd. 71 NY2d 994 (1988). Renewal is not available as a second chance for parties who have not exercised due diligence in making their first factual presentation. See Chelsea Piers Management v. Forest Elect. Corp., 281 AD2d 252 (1st Dept. 2001).



Dated: July 22, 2005

Carmel, New York ______________________________________

ANDREW P. O'ROURKE

J.S.C.