Apicella v. Estate of Apicella

305 A.D.2d 622, 759 N.Y.S.2d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), dated June 13, 2002, as denied that branch of her motion which was for leave to renew so much of a prior motion of the defendants John Apicella, Valerie Apicella, John Apicella, Jr., Lisa Apicella Jozef, and Kathryn Apicella which was pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against them for failure to prosecute.

Ordered that the order is affirmed insofar as appealed from, with costs.

A motion for leave to renew must be supported by new or additional 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” (CPLR 2221 [e] [2], [3]; see Rizzotto v Allstate Ins. Co., 300 AD2d 562 [2002]; Williams v Fitzsimmons, 295 AD2d 342 [2002]). The plaintiff failed to offer such justification. Accordingly, the Supreme Court properly denied the plaintiff’s motion.

The plaintiff’s remaining contentions are without merit. Feuerstein, J.P., S. Miller, McGinity and Crane, JJ., concur.