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IF THE EVIDENCE PRESENTED IN A MOTION TO RENEW WAS AVAILABLE AT THE TIME OF THE ORIGINAL MOTION, THE FAILURE TO INCLUDE IT MUST BE EXPLAINED; HERE THE FAILURE WAS NOT EXPLAINED AND THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the evidence presented in plaintiff’s motion to renew was available at the time of the initial motion. Therefore plaintiff’s failure to explain the failure to include it required denial of the renewal motion:

Plaintiff moved under CPLR 2221(e) for leave to renew defendants’ motion to vacate the default and compel arbitration. In support of its motion, plaintiff submitted public court filings showing that the prior attorney was not incapacitated as he claimed between September 18 … and December 31 … and that the prior attorney had appeared in at least one hearing during that time. Plaintiff argued that the prior attorney’s explanation for his failure to appear on behalf of defendants, on which Supreme Court relied upon to vacate the default, contained material misrepresentations and that these new facts were sufficient to warrant renewal. In opposition, defendants submitted an affirmation from the prior attorney essentially reasserting the circumstances of his default. Supreme Court granted renewal, vacated the prior order, and reinstated the default judgment.

The record demonstrates that the court filings plaintiff relies on, which are matters of public record, existed at the time it submitted opposition to defendants’ vacatur motion. Plaintiff, however, did not provide in the renewal motion a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e][3]…). Chris Grant Brohawk Films v Digital Seven LLC, 2022 NY Slip Op 06635, First Dept 11-22-22

Practice Point: If a motion to renew is based upon evidence which was available at the time of the original motion, the failure must be explained. Here the absence of any explanation required denial of the motion to renew.

 

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