Piemonte v Gruenberg, Kelly & Della

[*1] Piemonte v Gruenberg, Kelly & Della 2018 NY Slip Op 51115(U) Decided on July 12, 2018 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : ANTHONY MARANO, P.J., JERRY GARGUILO, TERRY JANE RUDERMAN, JJ
2017-207 S C

Vincent Piemonte, Respondent,

against

Gruenberg, Kelly and Della, Appellant.

Gruenberg, Kelly, Della (Michael Della of counsel), for appellant. Somer, Heller & Corwin, LLP (Stanley J. Somer of counsel), for respondent.

Appeal from an order of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), entered December 7, 2016. The order denied defendant's motion for leave to renew its prior motion for summary judgment dismissing the complaint which had been denied in an order of that court entered July 18, 2016.

ORDERED that the order entered December 7, 2016 is affirmed, without costs.

Plaintiff, a landlord, was owed rental arrears totaling $6,470 for an apartment leased by Alfred Cresci and occupied by Kathleen Waite. Defendant, a law firm, represented Waite in a personal injury action. In January 2015, plaintiff, defendant, Cresci and Waite executed an agreement which provided, among other things, that Waite assigned to plaintiff the sum of $6,470 from the proceeds of any settlement or judgment which defendant would obtain on Waite's behalf in the personal injury action; that Waite directed defendant to issue an escrow check to pay $6,470 to plaintiff upon receipt of any such proceeds; and that defendant agreed to do so. After the proceeds had been obtained, defendant failed to pay the $6,470 to plaintiff, notwithstanding the terms of the agreement; rather, defendant released all of the money to Waite. Thereafter, plaintiff commenced this action based on defendant's breach of the agreement.

Defendant moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment in the sum of $6,470. By order dated July 18, 2016, the District [*2]Court denied defendant's motion and granted plaintiff's cross motion. A judgment awarding plaintiff the principal sum of $6,470 was entered on August 1, 2016. Defendant's appeal from the July 2016 order was deemed an appeal from the subsequently entered judgment, and, by decision and order of this court dated April 5, 2018, the judgment was affirmed (59 Misc 3d 132[A], 2018 NY Slip Op 50475[U]).

In July 2016, defendant moved for leave to renew its prior motion for summary judgment dismissing the complaint and alleged new facts, to wit, that defendant and Waite had signed the agreement under duress. By order dated December 7, 2016, the District Court denied defendant's motion, finding that defendant had "failed to demonstrate reasonable justification for not presenting the additional evidence on the prior motion. The evidence was neither newly discovered nor was it unavailable." This appeal by defendant ensued.

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]; see Ciliotta v Ranieri, 149 AD3d 1032, 1034 [2017]). Upon a review of the record, we find that the District Court properly denied defendant's motion for leave to renew its prior motion for summary judgment dismissing the complaint, as defendant failed to show reasonable justification for its failure to present such facts on the prior motion. Renewal is not available as a "second chance" for parties who have not exercised due diligence in making their first factual presentation (see Ciliotta v Ranieri, 149 AD3d at 1034; Jovanovic v Jovanovic, 96 AD3d 1019, 1020 [2012]).

Accordingly, the order is affirmed.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2018