Motions For Leave to Renew: The Requirement Often Overlooked
July 13, 2017
A motion for leave to renew must be based upon new evidence or a change in the law that would change the prior determination and must contain a reasonable justification for failure to present such facts on the prior motion. If the new material proffered in the motion would not change the prior determination, a motion for leave to renew will be denied. This concept was recently explored by the Appellate Division, Second Department in Gall v Conlon-Sylvain, et al., 2017 N.Y. Slip Op. 04425 (2d Dept Jun. 7, 2017).
Plaintiff and Defendant Joseph Grant (“Grant”) were each 50% shareholders of JJRG Enterprises, Inc., a corporation that owned a parcel of residential real estate. Grant, however, represented himself to be the sole shareholder of JJRG and sold the property on behalf of the corporation. Plaintiff thereafter commenced an action against, among others, attorneys Anthony Michael Camisa (“Camisa”) and David M. Fish (“Fish”), alleging that they breached a duty to Plaintiff by failing to ascertain whether Grant had the authority to transfer the property on behalf of JJRG. Neither attorney, however, represented Plaintiff during the sales transaction. Camisa represented the purchaser-borrower and the defendant-lender, Wells Fargo, N.A. (“Wells Fargo”) and Fish represented the seller, JJRG.
Wells Fargo moved, pursuant to CPLR 3216, to dismiss the complaint due to Plaintiff’s failure to prosecute. The trial court initially granted Wells Fargo’s motion. However, following a non-jury trial against the defendant attorneys, the trial court granted Plaintiff’s motion for leave to renew his opposition to Wells Fargo’s motion. Upon renewal, the trial court vacated its prior determination and denied Wells Fargo’s motion to dismiss. Wells Fargo appealed.
The Second Department reversed. The Court first reiterated the standard on a motion for leave to renew: “A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination and must also contain a reasonable justification for the failure to present such facts on the prior motion.”
Applying this standard, the Court found that the trial court should have denied Plaintiff’s motion for leave to renew because the newly submitted evidence, which consisted of trial evidence from the trial of the two defense attorneys, would not have changed the trial court’s prior determination. Specifically, the new facts relied upon by Plaintiff did not demonstrate that Plaintiff had a meritorious cause of action against Wells Fargo because, even if Wells Fargo could be held liable for a breach of fiduciary duty by Camisa, the trial evidence did not establish that Camisa, as attorney for Wells Fargo, had any duty to act or give advice for the benefit of Plaintiff.
CPLR 2221(e)(2) requires that a motion for leave to renew “be based upon new facts not offered on the prior motion that would change the prior determination.” Thus, even if a motion to renew is based upon new evidence and includes a showing of reasonable justification for not presenting it on the earlier motion, leave to renew will be denied if the new material proffered in the motion would not change the prior determination.