Tuesday, April 15, 2014

A motion for leave to renew.

Practice point:  The Appellate Division found that the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was for leave to renew their opposition to the plaintiff's motion for summary judgment on the issue of liability, which motion had been granted in a prior order. The defendants offered a reasonable excuse for not including an affidavit from a certain nonparty witness in their prior opposition to the motion. It was not a mistake for the Supreme Court to consider the nonparty affidavit, even though it was signed and notarized in Florida and was not accompanied by a certification in accordance with CPLR 2309(c). This was not a fatal defect, as the plaintiff was not prejudiced thereby, pursuant to CPLR 2001.

Student note:  A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, pursuant to CPLR 2221[e][2], and must contain contain reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Ali v. Verizon N.Y., Inc., NY Slip Op 02401 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Standing to commence a mortgage foreclosure action.