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COURTS HAVE THE DISCRETION TO GRANT A MOTION TO RENEW EVEN IF BASED ON INFORMATION KNOWN AT THE TIME OF THE ORIGINAL MOTION; HERE THE MOTION TO RENEW ADDRESSED AN OMISSION IN THE ORGINGAL MOTION PAPERS WHICH THE JUDGE HAD RAISED SUA SPONTE AS THE GROUND FOR DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to renew in this foreclosure action should have been granted. The judge denied plaintiff’s motion for summary judgment on a ground not raised by the parties—plaintiff’s failure to submit a power of attorney authorizing a party to act as a loan servicer. The motion to renew addressed that omission, which had been raised by the judge sua sponte:

“Generally, ‘a motion for leave to renew is intended to bring to the court’s attention new or additional facts which were in existence at the time the original motion was made, but were unknown to the movant'” … . “However, the requirement that a motion for leave to renew be based upon new or additional facts unknown to the movant at the time of the original motion is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made”… .

Under the circumstances presented, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion for leave to renew based upon the submission of the limited power of attorney, since the plaintiff’s initial failure to submit the power of attorney was raised sua sponte by the court … . NP162, LLC v Harding, 2021 NY Slip Op 04612, Second Dept 8-4-21

 

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