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Current Developments in the Commercial Divisions of the
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Posted: April 3, 2015

Renewal Denied for Lack of Diligence

On March 17, 2015, Justice Hart of the Queens County Commercial Division issued a decision in Faith Assembly v. Titledge Edge of N.Y. Abstract, LLC, 2015 NY Slip Op. 50375(U), denying a motion for renewal.

In Faith Assembly, the defendant moved for leave to renew its motion to dismiss, even though the Second Department already had ruled on its appeal of the denial of that motion. The court denied the motion not because the Second Department already had ruled on the appeal, but because of the defendant’s lack of diligence in presenting the new evidence upon which it motion was based. The court explained:

CPLR 2221 states that a motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion. Although 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, 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 degree of certainty. Further, a post-appeal motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.

(Internal quotations and citations omitted) (emphasis added). This decision illustrates that importance, even at the motion to dismiss stage, of mastering the facts and evidence available and presenting it to the court when relevant.

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