Harway Terrace, Inc. v. Shlivko

220 A.D.3d 927

199 N.Y.S.3d 115

HARWAY TERRACE, INC., et al., appellants,

v.Nina SHLIVKO, respondent, et al., defendant.

2021–04201, (Index 504029/18)

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 19, 2023

October 25, 2023

Baker Greenspan & Bernstein, Bellmore, NY (Evan E. Richards of counsel), for appellants.

Shlivko Giancola LLC, New York, NY (Kenneth M. Giancola and Sam J. Shlivko of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiffs appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated May 10, 2021. The order, insofar as appealed from, denied that branch of the plaintiffs' motion which was for leave to renew their opposition to the prior motion of the defendant Nina Shlivko, inter alia, to quash certain subpoenas and the plaintiff's prior cross-motion to compel certain discovery, which had been determined in an order of the same court dated March 30, 2021.

ORDERED that the order dated May 10, 2021, is affirmed insofar as appealed from, with costs.

A motion for leave to renew "must be based upon ‘new facts not offered on the prior motion,’ or a change in the law, that would change the prior determination" ( Wells Fargo Del. Trust Co., N.A. v. De Los Santos, 186 A.D.3d 900, 901, 127 N.Y.S.3d 766, quoting CPLR 2221[e][2] ; see MTGLQ Invs., L.P. v. Rebecca, 208 A.D.3d 869, 871, 173 N.Y.S.3d 652 ). "Although the requirement that a motion for renewal must be based on new facts is a flexible one ..., a motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation, and 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" ( Jovanovic v. Jovanovic, 96 A.D.3d 1019, 1020, 947 N.Y.S.2d 554 [citations omitted]; see Seegopaul v. MTA Bus Co., 210 A.D.3d 715, 716, 177 N.Y.S.3d 694 ; Mooklal v. Clermont Farm Corp., 187 A.D.3d 740, 741, 133 N.Y.S.3d 38 ). Moreover, " ‘[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion’ " ( Deutsche Bank Natl. Trust Co. v. Galloway, 214 A.D.3d 625, 625, 182 N.Y.S.3d 922, quoting Ferraro Foods, Inc. v. Guyon, Inc., 165 A.D.3d 628, 630, 85 N.Y.S.3d 479 ).

Here, the plaintiffs failed to present new facts or demonstrate a change in the law that would change the prior determination (see Board of Mgrs. of Van...