Commercial Division Blog

Posted: July 25, 2019 / Categories Commercial, Renewal/Reconsideration/Reargument

Movant's Inability to Find Evidence in its Possession Insufficient Grounds for Renewal

On July 11, 2019, Justice Friedman of the New York County Commercial Division issued a decision in Trimarco v. Edwards, 2019 NY Slip Op. 32019(U), holding that a movant's inability to find evidence in its possession was insufficient grounds for renewal, explaining:

Pursuant to CPLR 2221(e)(2) and (3), a motion for leave to renew shall be based upon new facts not offered in 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. It is well settled that a motion for leave to renew must ordinarily be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and; therefore, not made known to the court. Renewal should ordinarily be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application. A court may, however, in its discretion grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made.

Like reargument, renewal should not be available where a party has proceeded on one legal theory and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application. Renewal is granted sparingly; it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation. Nor is it available to argue new legal theories which could have been previously relied upon but were not on the assumption that what was submitted was adequate.

Plaintiffs proffered excuse for failing to submit the 2012 MOU with his opposition to the motion to dismiss is that he could not locate it at the time among the hundreds of thousands of emails and other documents on various computer hard drives and flash drives. The court does not find this justification to be reasonable. Further, this justification is belied by plaintiffs correspondence with the court in seeking an extension of time to respond to the initial motion. Plaintiffs correspondence with the court was silent as to any difficulties in locating crucial documents. Instead, Plaintiff noted that the issues raised by defendant in the motion are complex, especially in light of his newly filed action. in Switzerland, which requires Plaintiff to retain Swiss counsel and fully understand the ramifications of that action. Plaintiff also cited the fact that it was the middle of summer, people are on vacation.

Plaintiffs complaint predicated jurisdiction on the New York contacts established by the alleged negotiation and partial execution of the loan and settlement agreements in New York. In opposition to the motion to dismiss, plaintiff argued that the 2012 loan and settlement agreements arose out of the 2010 agreement. Plaintiff further argued that the forum selection clause in the 2010 agreement accordingly applied to the 2012 agreements. Plaintiff has failed to make any showing of due diligence in searching for the assertedly critical 2012 MOU that plaintiff himself executed.

Under these circumstances, plaintiff both fails to establish a reasonable justification for its failure to offer the 2012 MOU before the prior motion was briefed, and to establish that the interest of justice warrants renewal notwithstanding the absence of a reasonable justification.

(Internal quotations and citations omitted).

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.