theCPLRblog

2221

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
(e) Motion for Leave to Renew

Jordan v Yardeny, 2011 NY Slip Op 04423 (App. Div., 2nd 2011)

A motion for leave to renew must be based upon new facts not offered on a prior motion that would change the prior determination, and set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e]; Swedish v Beizer, 51 AD3d 1008, 1010). The Supreme Court properly denied that branch of the defendant's motion which was, in effect, for leave to renew his prior motion to vacate the default judgment, as the new facts proffered would not have changed the prior determination (see CPLR 2103[b]; Cole v Young, 28 AD3d 702, 703; Jackson-Cutler v Long, 2 AD3d 590; Barbagallo v Nationwise Exterminating & Deodorizing, 260 AD2d 518, 519). Furthermore, the defendant failed to set forth a reasonable justification for the failure to present the new facts on the prior motion.

Zito v Jastremski, 2011 NY Slip Op 04240 (App. Div., 2nd 2011)

The Supreme Court providently exercised its discretion when it, in effect, denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendants' respective motions for summary judgment (see CPLR 2221[e]; O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). The plaintiff sought leave to renew her opposition to the defendants' motions for summary judgment so that she could submit the dental records relied upon by her expert, which she failed to submit with her original opposition. The plaintiff failed to offer a reasonable justification as to why the proffered evidence was not submitted at the time of the prior motion. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Renna v Gullo, 19 AD3d 472; Hart v City of New York, 5 AD3d 438; Rubinstein v Goldman, 225 AD2d 328, 328-329). In addition, the records sought to be submitted would not have changed the prior determinations (see CPLR 2221[e][2]). Accordingly, that branch of the motion which was for leave to renew was properly denied.

Haque v Daddazio, 2011 NY Slip Op 04041 (App. Div., 2nd 2011)

The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, since the plaintiff failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and, moreover, he improperly presented arguments not previously advanced (see CPLR 2221[d][2]). A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (Mazinov v Rella, 79 AD3d 979, 980, quoting McGill v Goldman, 261 AD2d 593, 594).

Too late to attach transcript.

Suits v Wyckoff Hgts. Med. Ctr., 2011 NY Slip Op 03894 (App. DIv., 1st 2011)

Defendant's motion to renew was correctly denied since the deposition transcript proffered upon renewal existed at the time the original motion was made, and defendant failed to proffer any reasonable excuse for its failure to obtain a copy of the transcript from co-defendant's counsel before making that motion (see CPLR 2221[e]; Silverman v Leucadia Inc., 159 AD2d 254 [1990]).

Stipulations and 2221

CPLR R. 2221 Motion affecting prior order
(d) A motion for leave to reargue
(e) Motion for Leave to Renew

Churchill v Malek, 2011 NY Slip Op 03673 (App. Div. 1st 2011)

Given that, in this personal injury action, there is no claim to recover damages for emotional or psychological injury (see Valerio v Staten Is. Hosp., 220 AD2d 580 [1995]), or aggravation of a preexisting emotional or mental condition (see Sternberger v Offen, 138 AD2d 480 [1988]), plaintiff cannot be compelled to disclose confidential psychological or psychiatric records (cf. Carr v 583-587 Broadway Assoc., 238 AD2d 184, 185 [1997]). Defendant's unsubstantiated claim that plaintiff's mental illness might have caused the accident is insufficient to warrant mental health disclosure (see Zimmer v Cathedral School of St. Mary & St. Paul, 204 AD2d 538, 539 [1994]).

Defendant's argument that plaintiff is bound by prior stipulations is unavailing, since both documents were clearly denominated as orders. Equally unavailing is defendant's contention that plaintiff's motion to reargue was untimely. The prior order was never served with notice of entry; therefore, the thirty-day period set forth in CPLR 2221(d)(3) has not been triggered (see Zhi Fang Shi v Sanchez, 36 AD3d 486 [2007]).

Yerushalmi v Yerushalmi, 2011 NY Slip Op 02657 (App. DIv., 2nd 2011)

" A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion'" (Swedish v Beizer, 51 AD3d 1008, 1010; quoting Ellner v Schwed, 48 AD3d 739, 740; see CPLR 2221[e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688). " Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion'" (Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d 668, 669, quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403, 403; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 982).

Here, the defendant's motion, in effect, for leave to renew was not based upon new facts in existence at the time of the original motion which would have changed the prior determination, but consisted of factual material that was merely cumulative with respect to the factual material submitted in connection with the prior motion. Accordingly, the motion, in effect, for leave to renew was properly denied.

Prinz v New York State Elec. & Gas, 2011 NY Slip Op 02648 (App. Div., 2nd 2011)

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, which had been granted by the Supreme Court in an earlier order. "A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination'" (Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480, quoting CPLR 2221[e][2]; see Renna v Gullo, 19 AD3d 472, 473; Kaufman v Kunis, 14 AD3d 542). Here, the allegedly new facts offered would not have changed the prior determination (see CPLR 2221[e][2]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 985).

Under the circumstances of this case, the Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to amend his complaint (see Kazakhstan Inv. Fund v Manolovici, 2 AD3d 249, 250).

 

R. 2221

CPLR R. 2221

Vazquez v JRG Realty Corp., 2011 NY Slip Op 01349 (App. Div., 1st 2011)

No appeal lies from the denial of a motion to reargue (DiPasquale v Gutfleish, 74 AD3d 471 [2010]). Supreme Court also properly denied the motion to renew, as the expert affidavit proffered on renewal was available to plaintiffs prior to the summary judgment motion being fully submitted (see e.g. Estate of Brown v Pullman Group, 60 AD3d 481 [2009], lv dismissed and denied 13 NY3d 789 [2009]). In any event, plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact (Pappas v Cherry Cr., Inc., 66 AD3d 658 [2009]).

 

CPLR R. 2221: motion not required.

CPLR R. 2221

Mazinov v Rella, 2010 NY Slip Op 09479 (App. Div., 2nd 2010)

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 AD2d 593, 594; see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874; Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434; Amato v Lord & Taylor, Inc., 10 AD3d 374). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion for leave to reargue since they failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and improperly presented arguments not previously advanced (see CPLR 2221[d][2]). 

Rostant v Swersky, 2010 NY Slip Op 08987 (App. Div., 1st 2010)

Plaintiff was not precluded from moving for reargument before the order on the first decision was entered. "A court has the inherent power, sua sponte or on motion of a party, to reconsider and vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003 [2003]; Manocherian v Lenox Hill Hosp., 229 AD2d 197, 202-203 [1997], lv denied 90 NY2d 835 [1997]). Nor did plaintiff's failure to submit all the original motion papers on her reargument motion render the latter procedurally defective. CPLR 2221 does not specify the papers that must be submitted on a motion for reargument, and the decision whether to entertain reargument is committed to the sound discretion of the court (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part, denied in part, 80 NY2d 1005 [1992]). Moreover, the motion court gave all parties the opportunity to supplement the record with the underlying papers, and afforded defendants the opportunity to present any further argument warranted by the additional submissions. Thus, defendants were not prejudiced by the deficiencies in plaintiff's submissions on reargument or by the procedures adopted by the court (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269 [2008]).

Intergalactic Bugs and CPLR R. 3212 and CPLR R. 2221. Happy 4th of July.

Normally, I don’t write anything special for the 4^th of July.  I’m going to continue that tradition.  I will, however, be doing my civic and patriotic duty: watching Starship Troopers.  The number one threat facing the country today is intergalactic bugs.  I, for one, will be prepared.

In the past few days, decisions have come out from every court but the Appellate Term, Second Department.  Creating a decision that allows an expert to base her testimony on hypotheticals alone[1] probably took a lot out of them, so they get a pass for their inactivity.

Today's post will cover the recent 3212 decisions.  I was going to put all of the recent decisions in one post, but decided that it would take up too much time and space.  And, nobody would read anything that long.

The last decision also discusses relaxing CPLR R. 2221(e)(2)'s evidence available at the time the original motion was made, requirement, in the interest of justice.  CPLR R.  2221(e) provides:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

I'm testing out writing my posts in word, so bear with me while I try to figure out the formatting.  From the looks of it, this will be a short lived experiment.

CPLR R. 3212 Summary Judgment

Estate of Marie Merna v Simuro, 2010 NY Slip Op 05725 (App. Div., 2^nd, 2010)

As the proponent of the motion for summary judgment, the bank was required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Matin v Chase Manhattan Bank, 10 AD3d 447, 448). The bank failed to meet this burden, as the evidence it submitted was insufficient to eliminate any triable issues of fact as to whether the relevant account statements were "made available" to the plaintiff before January 5, 2005, the date on which she discovered the forgeries (UCC 4-406[4]; see Matin v Chase Manhattan Bank, 10 AD3d at 448-449; Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117).

***

However, the Supreme Court improperly denied that branch of the bank's motion which was to strike the plaintiff's demand for a jury trial[2] (see generally Brian Wallach Agency v Bank of N.Y., 75 AD2d 878; Massry Importing Co. v Security Natl. Bank, 49 AD2d 750; David v Manufacturers Hanover Trust Co., 59 Misc 2d 248).

Espada v City of New York, 2010 NY Slip Op 05724 (App. Div., 2^nd, 2010)

Contrary to the plaintiff's contention, the defendants' motion was not premature, as the plaintiff failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion were exclusively within the defendants' knowledge and control (see CPLR 3212[f]; Hill v Ackall, 71 AD3d 829; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 737).

Evangelista v Kambanis, 2010 NY Slip Op 05726 (App. Div., 2^nd, 2010)

"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Matter of Fasciglione, 73 AD3d 769, 769; see CPLR 3212[f]; Rodriguez v DeStefano, 72 AD3d 926). Here, at the time the defendant landowners moved for summary judgment, they had not been deposed. Moreover, it appears that information concerning whether they created the alleged dangerous condition on the sidewalk abutting their property which caused the plaintiff's accident, or enjoyed a special use of the sidewalk which gave rise to the dangerous condition, may be within their exclusive knowledge (see Adler v City of New York, 52 AD3d 549, 549-550). Under these circumstances, the Supreme Court did not improvidently exercise its discretion in denying, as premature, the defendants' motion for summary judgment dismissing the complaint (see Matter of Fasciglione, 73 AD3d at 769; Gruenfeld v City of New Rochelle, 72 AD3d 1025; Rodriguez v DeStefano, 72 AD3d at 926; Harvey v Nealis, 61 AD3d 935, 936).

Atiencia v Mbbco Ii, LLC, 2010 NY Slip Op 05872 (App. Div., 1^st, 2010)

A court, in the course of deciding a motion, is empowered to search the record and award summary judgment to a nonmoving party (see CPLR 3212(b); Lennard v Khan, 69 AD3d 812, 814 [2010]). However, with respect to the June 2009 order, the motion court erred in dismissing the Labor Law § 241(6) claim against Farrell, as that claim was not placed before the court on plaintiffs' summary judgment motion (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).

Regarding the October 2009 order, the motion court should have granted the motions to renew. Although the newly submitted evidence was available at the time of the prior motion, the court "ha[d] discretion to relax this requirement and to grant such a motion in the interest of justice" (Mejia v Nanni, 307 AD2d 870, 871 [2003]). Not only did plaintiffs and MBBCO offer reasonable justification for failing to submit the evidence submitted on the motion, but the new facts submitted do, in fact, change the prior determination (CPLR 2221[e][2]).

---

[1] I'm referring to Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 2010 NY Slip Op 50987(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).  I have a long post about it over at the No-Fault blog.  Here is a snippet of the decision.

 

Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.  (Emphasis Added)

 

[2] This footnote is mine. In the cases the Appellate Division cites, there was a prior agreement/contract waiving the right to a jury.  Compare, just for fun, Haber v Cohen, 2010 NY Slip Op 05730 (App. Div., 2^nd, 2010)(“Contrary to the defendants' contention, the amendment of their counterclaims to withdraw their requests for equitable relief did not revive their right to a trial by jury”)(Citations omitted).

Renewal proper to correct "procedural oversight" CPLR R. 2221

CPLR R. 2221
(e) Motion for Leave to Renew

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the absence of any prejudice to defendants, renewal was properly granted to plaintiff to correct a procedural oversight on the previous motion and allow the submission of her examining physician's report in admissible form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon renewal, Supreme Court should have adhered to its original determination granting defendants' motion for summary judgment because plaintiff failed to raise a triable issue of material fact as to whether she sustained a serious injury in this accident.

Strange.  Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place.  The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and ... absen[t] ... any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

CPLR R. 3212(a) Timing: Piggy-back Motions

CPLR R. 3212 Motion for summary judgment
(a) Time; kind of action

CPLR § 2211 Application for order; when motion made

Lennard v Khan, 2010 NY Slip Op 00482 (App. Div., 2nd, 2010)

The plaintiff's independent medical examination occurred on December 4, 2008, thus requiring submission of any summary judgment motions by January 27, 2009, the earliest of the possible deadlines.

By notice of motion dated January 22, 2009, the defendants Fazal Khan and Ace Towing, LLC (hereinafter the respondents), moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The respondents served the plaintiff's counsel with the summary judgment motion on January 23, 2009, and filed the motion with the court on February 11, 2009.

The defendants Keith O. Prescod, Jr., and Desiree Klass separately moved for the same relief. They served the plaintiff's counsel with their motion papers on January 30, 2009, and filed them with the court on March 2, 2009.

***The plaintiff opposed both motions on the ground that they were untimely, but did not address the movants' arguments that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In reply, the respondents argued that their motion was timely under CPLR 2211 because it had been served on the plaintiff's counsel within the time period allotted. In an order dated April 2, 2009, the Supreme Court granted the respondents' motion as timely and since it was unopposed on the merits. The court also denied the separate motion of Prescod and Klass as untimely. These appeals ensued.

"A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560, 561). Given that the respondents' motion was served on the plaintiff's counsel by mail on January 23, 2009, four days before the January 27, 2009, deadline, the Supreme Court correctly concluded that the respondents' motion was timely.

Where one party makes a timely summary judgment motion, the court may properly consider an untimely summary judgment motion, provided the late motion is based on "nearly identical" grounds as the timely motion (Perfito v Einhorn, 62 AD3d 846, 847 [internal quotation marks omitted]; see Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 844-845; Ianello v O'Connor, 58 AD3d 684; Grande v Peteroy, 39 AD3d 590, 591-592; Miranda v Devlin, 260 AD2d 451, 452). In effect, the "nearly identical" nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion (Grande v Peteroy, 39 AD3d at 592). "Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party" (see CPLR 3212[b]; Grande v Peteroy, 39 AD3d at 592).

Since the respondents' motion was already properly before the court, it improvidently exercised its discretion in refusing to consider the separate motion of Prescod and Klass, made on identical grounds, on the ground that the separate motion was untimely made (see Joyner-Pack v Sykes, 54 AD3d 727; Grande v Peteroy, 39 AD3d at 591; Miranda v Devlin, 260 AD2d 451). Further, since the plaintiff did not challenge the movants' contentions regarding serious injury, the separate motion should have been granted.

Here, the order required that a summary judgment motion be made by a certain date.  Watch out for orders or stipulations that require a motion to be filed by a certain date.

Further food for thought( h/t Damin Toell): Piquette v. City of New York, 4 A.D.3d 402 (App. Div., 2nd, 2004):

Although the municipal defendants' motion to set aside the jury verdict was made on insufficient notice (see CPLR 2214 [b]), the plaintiffs were not prejudiced by this procedural irregularity, and waived their objection to it by opposing the motion on the merits (see Henry v Gutenplan, 197 AD2d 608 [1993]; Adler v Gordon, 243 AD2d 365 [1997]; Matter of Venner, 235 AD2d 805 [1997]; Todd v Gull Contr. Co., 22 AD2d 904 [1964]). Accordingly, the Supreme Court erred in refusing to determine the motion on its merits.

 

Motion to Renew and The Value of a General Release

CPLR R. 2221
(e) Motion for Leave to Renew

Huma v Patel, 2009 NY Slip Op 09191 (App. Div., 2nd, 2009)

Although a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion (see Ramirez v Khan, 60 AD3d 748; Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391; Hasmath v Cameb, 5 AD3d 438, 439; Bloom v Primus Automotive Fin. Serv., 292 AD2d 410), a motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472, 473; see Ramirez v Khan, 60 AD3d at 748; Sobin v Tylutki, 59 AD3d 701, 702; Lardo v Rivlab Transp. Corp., 46 AD3d 759; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437).

Here, the new evidence offered in support of the appellant's motion, in effect, for leave to renew consisted of copies of general releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, which allegedly extinguished the debt underlying the two promissory notes which are the subject of this action. However, the appellant was aware of the existence of these releases at the time the summary judgment motion was made, and failed to demonstrate that he could not have obtained copies of the releases in time to oppose summary judgment with the exercise of [*2]due diligence. In any event, the appellant failed to demonstrate that the existence of the releases warranted a change in the prior determination awarding summary judgment to the plaintiffs Uzma Huma and Faiza Berlas, who are the payees on the subject promissory notes. "The meaning and coverage of a general release depends on the controversy being settled and upon the purpose for which the release was actually given" (Lefrak SBN Assoc. v Kennedy Galleries, 203 AD2d 256; see Cahill v Regan, 5 NY2d 292, 299; Matter of Brown, 65 AD3d 1140; Zichron Acheinu Levy, Inc. v Ilowitz, 31 AD3d 756), and a general release may not be read to cover matters which the parties did not desire or intend to dispose of (see Matter of Schaefer v Liberty National Bank and Trust Co., 18 NY2d 314, 317; Cahill v Regan, 5 NY2d at 299; Spears v Spears Fence, Inc., 60 AD3d 752, 753; Rotondi v Drewes, 31 AD3d 734, 735-736). Although the appellant predicated his motion for leave to renew upon the releases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of a prior action, the record does not disclose the nature of the prior action, and the appellant failed to offer sufficient evidentiary proof to raise a triable issue of fact as to whether the releases were intended to extinguish the debt underlying the subject promissory notes.

I probably should have waited until I found more 2221 decisions, but this one really stands out.

[edit]

Spoke too soon.  This decision (Morgan v Windham Realty, LLC) involves a 2221 motion, but that's not what I'm going to quote.  It's still procedural, but different.

The plaintiffs' contention that Francis and Talbots failed, on their cross motion for summary judgment, to include an affidavit of a person with personal knowledge of the facts or appropriate deposition testimony was not raised in the Supreme Court and, thus, is not properly before this Court (see Kruszka v City of New York, 29 AD3d 742, 743; Medugno v City of Glen Cove, 279 AD2d 510, 511; Rosendale v Galin, 266 AD2d 444, 445; Gross v Aetna Cas. & Sur. Co., 240 AD2d 468, 469).

CPLR R. 2221(e) Motion to Renew

CPLR R. 2221
(e) Motion for Leave to Renew

Abayev v Zia, 2009 NY Slip Op 08565 (App. Div., 2nd, 2009)

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Ramirez v Khan, 60 AD3d 748; Dinten-Quiros v Brown, 49 AD3d 588; Madison v Tahir, 45 AD3d 744). "Although a motion for leave to renew generally must be based on newly-discovered facts, this requirement is a flexible one, and a court has the discretion to grant renewal upon facts known to the movant at the time of the original motion, provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion" (Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 AD3d 727, 728).

Here, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew his opposition to the motion of the defendant Karen Mazuer for summary judgment dismissing the complaint insofar as asserted against her. The plaintiff submitted additional evidence and offered a reasonable justification for his failure to submit that additional evidence at the time of his opposition to the motion for summary judgment (see CPLR 2221[e]). However, upon renewal, the Supreme Court properly adhered to its original determination granting the motion for summary judgment.

Sajid v Glenwood Holding, LLC, 2009 NY Slip Op 09016 (App. Div., 2nd, 2009)

We affirm the denial of renewal on the ground that the defendants failed to offer a reasonable justification for failing to present the affidavit of the corporate defendants' principal in their opposition to the plaintiffs' original motion (see CPLR 2221[e]; Barnett v Smith, 64 AD3d 669, 670; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533; St. Claire v Gaskin, 295 AD2d at 337).

The bold is mine.

Post Appeal Motion to Renew: CPLR R. 2221(e)

CPLR R. 2221(e) Motion for Leave to Renew

Estate of Anna K. Essig v 5670 58 St. Holding Corp., 2009 NY Slip Op 07581 (App. Div., 2nd, 2009)

On prior appeals, this Court, inter alia, affirmed an order granting that branch of the plaintiffs' prior motion which was for summary judgment on their cause of action for a judgment declaring that they are the owners of 225 shares of the capital stock of the defendant 5670 58 Street Holding Corp. and affirmed an order denying the respondents' prior motion for leave to renew their opposition to that branch of the plaintiffs' prior motion (see Estate of Essig v 5670 58 St. Holding Corp., 50 AD3d 948). Thereafter, the respondents moved again for leave to renew based upon documents discovered four months earlier. The Supreme Court granted the motion and, upon renewal, vacated the judgment entered August 7, 2008, and denied that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action. We reverse.

Pursuant to CPLR 2221(e), 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]). Moreover, while "a court of original jurisdiction may entertain a motion to renew or to vacate a prior order or judgment on the ground of newly discovered evidence even after an appellate court has affirmed the original order or judgment . . . on [a] postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence in presenting the new evidence to the [*2]Supreme Court in order to imbue the appellate decision with a degree of certainty" (Levitt v County of Suffolk, 166 AD2d 421, 422-423 [citations omitted][emphasis added]). Here, the respondents failed to offer a reasonable explanation for their failure to present the "new facts" in conjunction either with their opposition to that branch of the plaintiffs' prior motion which was for summary judgment on their declaratory judgment cause of action or with their first motion for leave to renew (see Elder v Elder, 21 AD3d 1055; Renna v Gullo, 19 AD3d 472, 473). Accordingly, the respondents' motion for leave to renew should have been denied.

The bold is mine.