Thursday, December 6, 2012

Motion for leave to renew.

Practice point: Defendants' motion for leave to renew their motion to vacate an order and ensuing judgment entered on default was denied because the self-styled “new facts" submitted on renewal in the form of affidavits of merit could have been submitted on the prior motion to vacate the default judgment, and defendants failed to offer a reasonable justification for the failure to do so, pursuant to CPLR 2221[e][3].

Student note: Defendants’ claim that their former counsel mistakenly made the prior motion pursuant to CPLR 2221, which did not require the submission of an affidavit of merit, was undermined by counsel's identification of the motion as one to vacate a prior order and judgment.

Case: DC Media Capital LLC v. Sivan, NY Slip Op 07391 (1st Dept. 2012).

Here is the decision.

Tomorrow’s issue: Admissibility of third-party business records.