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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 9, 2021

Motion for Renewal Denied For Failure to Justify Late Submission of Evidence

On December 29, 2020, the First Department issued a decision in Wang v. LaFrieda, 2020 NY Slip Op. 08025, holding that a motion for renewal properly was denied for failure to justify the late submission of evidence, explaining:

Plaintiffs also failed to provide a reasonable justification for their failure to submit the Leetsi affidavit in a timely manner. While plaintiffs made some vague assertions regarding their attempts to contact Leetsi earlier, they have not put forth any specific information regarding their efforts to locate her or to obtain the affidavit. Further, the Leetsi affidavit suggests that she was simply busy with a move, travel, and an injury, and otherwise did not want to get involved with the case. Such a conclusory claim as to a witness’ unavailability is not a valid excuse for not submitting the additional facts upon the original application. Nor have plaintiffs provided an adequate explanation for the year-long delay between when they obtained the Leetsi affidavit (in April of 2018) and when they filed the motion to renew (in April of 2019). Regardless, even giving the Leetsi affidavit full weight, the facts contained within it — which defendants largely contest — would not change the outcome of the case.

(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 jlundin@schlamstone.com if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.

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