DC Media Capital LLC v. Sivan

100 A.D.3d 413, 952 N.Y.S.2d 888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 2012
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 18, 2011, which denied defendants’ motion for leave to renew their motion to vacate an order and ensuing judgment entered on default, unanimously affirmed, with costs.

The “new facts” submitted on renewal, in the form of affidavits of merit, could have been submitted on the prior motion to vacate the default judgment, and defendants failed to offer a reasonable justification for the failure to do so (see CPLR 2221 [e] [3]; Matter of Weinberg, 132 AD2d 190, 210 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]). The claim that defendants’ former counsel mistakenly made the prior motion pursuant to CPLR 2221, which did not require the submission of an affidavit of merit, was undermined by counsel’s identification of the motion as one to “vacate” a prior order and judgment.

We have considered defendants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sweeny, Renwick, Richter and Román, JJ.