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SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT).

The Second Department determined the motion to vacate a default judgment should not have been granted on grounds that could have been raised in the first motion (which was denied). The court further held that the second motion should not have been deemed a motion to renew, for essentially the same reason:

The Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment, since that branch was premised on grounds that were apparent at the time that the defendant made the prior motion to vacate, but had not been asserted in that prior motion … .

To the extent that the Supreme Court treated the defendant's second motion as one for leave to renew, the court should not have granted leave to renew and, upon renewal, granted that branch of the defendant's prior motion which was to vacate the judgment. Pursuant to CPLR 2221, 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” … . “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” … . The 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 … . Here, the defendant failed to proffer any justification for the failure to present the new facts on the original motion. Furthermore, the defendant failed to demonstrate that the new facts would have changed the prior determination … . A.G. Parker, Inc. v 246 Rochester Partners, LLC, 2018 NY Slip Op 06711, Second Dept 10-10-18

CIVIL PROCEDURE (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/VACATE DEFAULT, MOTION TO (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/RENEW, MOTION TO  (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/CPLR 5015 (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))/CPLR 2221 (SECOND MOTION TO VACATE A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON GROUNDS THAT COULD HAVE BEEN RAISED IN THE FIRST MOTION, SECOND MOTION SHOULD NOT HAVE BEEN TREATED AS A MOTION TO RENEW (SECOND DEPT))

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