Welch Foods, Inc. v. Wilson

247 A.D.2d 830, 669 N.Y.S.2d 109

Opinion

Order unanimously reversed on the law without costs, motion denied and order reinstated. Memorandum: Supreme Court erred in granting defendants’ motion to renew and reargue and vacating its prior order granting plaintiffs cross motion for partial summary judgment (see, CPLR 2221; Doe v Roe, 210 AD2d 932). Although defendants purported to seek renewal and reargument of the cross motion, they in actuality sought only renewal, based upon affidavits and documentary evidence submitted by a new expert. Among the documents were a 1984 Federal Environmental Protection Agency manual, and comparisons of the Village of Westfield’s water treatment plant user charges with those of other municipalities. Defendants failed to establish that “the purported ‘new’ material was not in existence or was unavailable at the time the initial motion was made and to proffer a valid excuse for failing to submit that material in support of their initial motion” (Doe v Roe, supra, at 933; see, Brookview Homeowners’ Assn, v Mark IV Constr. Co., 178 AD2d 967, 967-968; Foley v Roche, 68 AD2d 558, 568). To the extent that the new materials were matters of public record available before the court issued its decision on the cross motion, moreover, they could not serve as a proper basis for a motion to renew (see, City of White Plains v Deruvo, 159 AD2d 534). Nor is the recruitment of a new expert a legitimate basis for renewal; renewal “ ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation’ ” (Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d 343, 344, lv denied in part and dismissed in part 88 NY2d 1014). (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Renewal.)

Present — Pine, J. P., Hayes, Wisner, Balio and Fallon, JJ.