Queens Unit Venture, LLC v Tyson Ct. Owners Corp.

Queens Unit Venture, LLC v Tyson Ct. Owners Corp. 2013 NY Slip Op 07820 Decided on November 21, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 21, 2013
Tom, J.P., Andrias, Friedman, Freedman, Clark, JJ.
11016N 111568/11

[*1]Queens Unit Venture, LLC, Plaintiff-Appellant,

v

Tyson Court Owners Corp., Defendant-Respondent, All Area Realty Services, Inc., Defendant.




Gallet Dreyer & Berkey, LLP, New York (Jerry A. Weiss of
counsel), for appellant.
Robert L. Gordon, Palisades, for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered August 21, 2012, which to the extent appealed from as limited by the briefs, granted defendant Tyson Court Owners Corp.'s motion to renew, and upon renewal, denied plaintiff's motion for summary judgment to the extent it sought a declaration that the shares associated with Units C1 and C5 in the subject building constituted "unsold shares" pursuant to the cooperative's proprietary lease, unanimously reversed, on the law, without costs, and the motion to renew denied.

The motion court improvidently exercised its discretion in granting the motion to renew. 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" (CPLR 2221[e][2],[3]). "A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Sobin v Tylutki, 59 AD3d 701, 702 [2d Dept 2009] [internal quotation marks omitted]). The purported new facts set forth in defendant's motion were presented in affidavits which had been previously rejected as an impermissible surreply on the original motion for summary judgment (see Coleman v Korn, 92 AD3d 595 [1st Dept 2012]). The affidavits were executed approximately four weeks before the original summary judgment motion was submitted and defendant failed to demonstrate a reasonable justification for failing to submit [*2]them in a timely fashion at that time (see James v 1620 Westchester Ave., LLC, 105 AD3d 1, 7 [1st Dept 2013]; Chelsea Piers Mgmt v Forest Elec. Corp., 281 AD2d 252 [1st Dept 2001]). In any event, the affidavits were conclusory.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 21, 2013

CLERK