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NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT).

The Second Department determined petitioner’s motion for leave to renew was properly denied. The context was an action by a municipal employee, a senior tree pruner, arguing that he was entitled to a hearing before termination because of his status as a member of a volunteer fire department (an “exempt firefighter”). Petitioner’s attempt to present evidence of the “exempt firefighter” status in a motion to renew was rejected:

“In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination” … . However, “[t]he requirement that a motion for renewal be based on new facts is a flexible one” … . The new or additional facts presented “either must have not been known to the party seeking renewal or may, in the Supreme Court’s discretion, be based on facts known to the party seeking renewal at the time of the original motion” … . “However, in either instance, a reasonable justification’ for the failure to present such facts on the original motion must be presented” … .

” [T]he Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original 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… .  Here, we agree with the Supreme Court’s finding that the petitioner failed to offer a reasonable justification for his failure to present the documents relating to his status as an “exempt” firefighter in opposition to the original motion to dismiss. Matter of Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Second Dept 8-1-18

CIVIL PROCEDURE (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/CPLR 2221 (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))/RENEW, MOTION TO (NO REASONABLE JUSTIFICATION FOR FAILURE TO PRESENT DOCUMENTS WITH ORIGINAL MOTION, MOTION FOR LEAVE TO RENEW PROPERLY DENIED (SECOND DEPT))

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