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Posted: May 28, 2015

Renewal Denied for Lack of Reasonable Excuse for Not Submitting Evidence Earlier

On May 20, 2015, the Second Department issued a decision in JBGR, LLC v. Chicago Title Insurance Co., 2015 NY Slip Op. 04279, affirming the denial of a motion for renewal.

In JBGR, LLC, the defendant moved for renewal of its motion to dismiss on collateral estoppel grounds. The Second Department affirmed the trial court’s denial of the motion, explaining:

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. The requirement that a motion for renewal be based on new facts is a flexible one, and it is within the court’s discretion to grant renewal upon facts known to the moving party at the time of the original motion if the movant offers a reasonable excuse for the failure to present those facts on the prior motion.

In support of its motion for leave to renew, the defendant proffered the motion papers that had been submitted in connection with the Costello parties’ motion for summary judgment in the Costello action, as well as the verified answer in that action. It did so in an effort to establish that the defendants therein, i.e., the plaintiffs in the instant action, had a full and fair opportunity to litigate the issues of whether Elliott was acting as the agent for the plaintiffs herein, and whether his knowledge of the 1997 declaration should be imputed to them. The defendant failed to provide a reasonable excuse for why these documents were not submitted in support of its initial motion in this action.

(Internal quotations and citations omitted) (emphasis added).

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