Matter of JDM Holdings, LLC v Village of Warwick

Matter of JDM Holdings, LLC v Village of Warwick 2021 NY Slip Op 06999 Decided on December 15, 2021 Appellate Division, Second 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 December 15, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SYLVIA O. HINDS-RADIX
LINDA CHRISTOPHER
JOSEPH A. ZAYAS, JJ.
2018-13124
(Index No. 1282/16)

[*1]In the Matter of JDM Holdings, LLC, appellant,

v

Village of Warwick, respondent, et al., nominal defendant-respondent.

Ostrer & Associates, P.C., Chester, NY (Benjamin Ostrer and Hasapidis Law Offices [Annette Hasapidis] of counsel), for appellant.

Drake Loeb PLLC, New Windsor, NY (Stephen J. Gaba of counsel), for respondent.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief, the plaintiff/petitioner appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated September 4, 2018. The order, insofar as appealed from, in effect, denied that branch of the plaintiff/petitioner's motion which was for leave to reargue its opposition to the defendant/respondent's motion for summary judgment with respect to the complaint/petition, which was granted in an order and judgment (one paper) of the same court dated November 3, 2017, and, upon renewal, adhered to the prior determination granting the defendant/respondent's motion.

ORDERED that the appeal from so much of the order dated September 4, 2018, as denied that branch of the plaintiff/petitioner's motion which was for leave to reargue its opposition to the defendant/respondent's motion for summary judgment with respect to the complaint/petition is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated September 4, 2018, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant/respondent.

The underlying facts for this matter can be found in our decision on the related appeal decided herewith (see Matter of JDM Holdings, LLC v Village of Warwick, ___ AD3d ___ [Appellate Division Docket No. 2018-00200; decided herewith]).

On February 26, 2016, plaintiff/petitioner, JDM Holdings, LLC (hereinafter JDM), commenced this hybrid CPLR article 78 proceeding and declaratory judgment action against the Village of Warwick, among others, seeking, inter alia, to annul certain zoning ordinances. After discovery, the Village moved for summary judgment with respect to the complaint/petition. In an order and judgment dated November 3, 2017, the Supreme Court granted the Village's motion and dismissed the complaint/petition.

By notice of motion dated May 11, 2018, JDM moved for leave to renew and/or [*2]reargue its opposition to the Village's motion for summary judgment with respect to the complaint/petition. By order dated September 4, 2018, the Supreme Court, inter alia, granted that branch of JDM's motion which was for leave to renew and, upon renewal, adhered to its prior determination. JDM appeals.

A motion for leave to renew, inter alia, must be based upon new facts, not offered on the original motion "that would change the prior determination" (CPLR 2221[e][2]; see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585-586).

Here, the Supreme Court properly determined that the new facts submitted by JDM were insufficient to change the prior determination. The new evidence failed to raise triable issues of fact regarding the constitutionality or validity of the challenged ordinances (see Matter of Youngewirth v Town of Ramapo Town Bd., 155 AD3d 755, 759; see e.g. Armstrong v Armstrong, 162 AD3d 621, 622).

DILLON, J.P., HINDS-RADIX, CHRISTOPHER and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court