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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: January 1, 2017

Court Abused Discretion in Allowing Party to use Motion for Renewal to Change Legal Theories

On December 22, 2016, the First Department issued a decision in Matter of Kopicel v. Schnaier, 2016 NY Slip Op. 08608, holding that the trial court abused its discretion in allowing a party to use a motion for renewal to change its legal theory, explaining:

Renewal should have been denied where, as here, respondents offered no reasonable justification for failing to proffer the newly discovered evidence on the original order to show cause, when that evidence had been in their possession for years. It was further an abuse of discretion to allow renewal where respondents used it as an opportunity to change legal theories, after they had the court’s initial decision. Even had the court properly considered the unsworn, unsigned net worth statement of the debtor, prepared a year before the transaction at issue, it would have been insufficient to rebut the presumption of insolvency.

(Internal quotations and citations omitted).

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