Friday, April 11, 2014

Post-appeal motions to renew.

Practice point:  A court of original jurisdiction may entertain a motion for leave to renew based on new facts even after an appellate court has affirmed the original order.  However, on a post-appeal motion to renew, the movant bears a heavy burden of showing due diligence in presenting the new evidence to the Supreme Court' in order to imbue the appellate decision with a modicum of certainty.

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 offer reasonable justification for the failure to present such facts on the prior motion, pursuant to CPLR 2221[e][3].

Case:  Davi v. Occhino, NY Slip Op 02253 (2d Dept. 2014).

Here is the decision.

Monday's issue: A hearing on proper service of process.