Lemos v. Uhlir

Opinion

Lemos v Uhlir

2026 NY Slip Op 04848

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Otavio Lemos, etc., appellant,

v

Rachael Uhlir, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-06041, (Index No. 64102/23)

Colleen D. Duffy, J.P.

Paul Wooten

Janice A. Taylor

Phillip Hom, JJ.

Otavio Lemos, New Rochelle, NY, appellant pro se.

Will Newman Lawyer PLLC, Brooklyn, NY (William H. Newman of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Westchester County (Paul I. Marx, J.), dated May 28, 2024. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for leave to reargue and renew his opposition to the defendant's motion pursuant to CPLR 3211(a)(7) and (g) to dismiss the complaint, which had been granted in an order of the same court dated January 30, 2024, and pursuant to CPLR 3025(b) for leave to amend the complaint, and denied, as academic, that branch of the plaintiff's motion which was pursuant to CPLR 3211(g)(3) for leave to conduct discovery.

ORDERED that the appeal from so much of the order dated May 28, 2024, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated May 28, 2024, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The plaintiff commenced this action against the defendant, inter alia, to recover damages for defamation. The plaintiff alleged, among other things, that the defendant made defamatory statements, including that the plaintiff sexually assaulted the defendant, in posts to the defendant's Instagram account. The defendant moved pursuant to CPLR 3211(a)(7) and (g) to dismiss the complaint. In an order dated January 30, 2024, the Supreme Court granted the defendant's motion.

Thereafter, the plaintiff moved, inter alia, for leave to reargue and renew his opposition to the defendant's motion, pursuant to CPLR 3025(b) for leave to amend the complaint, and pursuant to CPLR 3211(g)(3) for leave to conduct discovery. In an order dated May 28, 2024, the Supreme Court, among other things, denied those branches of the plaintiff's motion which were for leave to reargue and renew his opposition to the defendant's motion and pursuant to CPLR 3025(b) for leave to amend the complaint, and denied, as academic, that branch of the plaintiff's [*2]motion which was pursuant to CPLR 3211(g)(3) for leave to conduct discovery. The plaintiff appeals.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. § 2221[e][2], [3]; see Citimortgage, Inc. v Sparozic, 223 AD3d 867, 868; Wilmington Sav. Fund Socy. FSB v Khandaker, 217 AD3d 729, 730). "While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance" (Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d 772, 773-774 [internal quotation marks omitted]). "What constitutes a reasonable justification is within the Supreme Court's discretion" (Rowe v NYCPD, 85 AD3d 1001, 1003 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Sylvestre, 238 AD3d 980, 983). However, "[w]hen no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" (P.J. 37 Food Corp. v George Doulaveris & Son, Inc., 189 AD3d 858, 859 [internal quotation marks omitted]).

Here, the plaintiff did not offer a reasonable justification for his failure to present the purported new facts and evidence in opposition to the defendant's prior motion to dismiss the complaint (see id.; Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586). Moreover, the plaintiff's contention that a change in the law warranted changing the prior determination is without merit (see U.S. Bank N.A. v Hall-Davis, 232 AD3d 696, 698). Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew.

The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to amend the complaint, as the plaintiff failed to submit a proposed amended complaint "clearly showing the changes or additions to be made to the pleading" (CPLR 3025[b]; see Pressley v City of New York, 233 AD3d 932, 939; Mendoza v Enchante Accessories, Inc., 185 AD3d 675, 679).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court