Commercial Division Blog

Posted: October 23, 2018 / Categories Commercial, Court Rules/Procedures, Renewal/Reconsideration/Reargument

Court Erred in Granting Renewal Where Movant Did Not Justify Failure to Present New Facts in Original Motion

On October 10, 2018, the Second Department issued a decision in A.G. Parker, Inc. v. 246 Rochester Partners, LLC, 2018 NY Slip Op. 06711, holding that it was error to grant renewal where the movant did not justify its failure to present the new facts in the original motion, explaining:

To the extent that the Supreme Court treated the defendant's second motion as one for leave to renew, the court should not have granted leave to renew and, upon renewal, granted that branch of the defendant's prior motion which was to vacate the judgment. Pursuant to CPLR 2221, 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. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion. Here, the defendant failed to proffer any justification for the failure to present the new facts on the original motion. Furthermore, the defendant failed to demonstrate that the new facts would have changed the prior determination.

(Internal citations omitted) (emphasis added).

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are procedural rules and as this decision illustrates, if a litigant ignores them, it can pay a high price. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.