Yerushalmi v. Yerushalmi

82 A.D.3d 1217, 919 N.Y.2d 374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2011
• Status: Published

Opinion

“ ‘A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion’ ” (Swedish v Beizer, 51 AD3d 1008, 1010 [2008], quoting Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR 2221 [e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688 [2009]). “ ‘Leave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion’ ” (Matter of Orange & Rockland Util. v Assessor of Town of Haverstraw, 304 AD2d [2003], quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403, 403 [1997]; see City of New York v St. Paul Fire & Mar. Ins. Co., 21 AD3d 982 [2005]).

Here, the defendant’s motion, in effect, for leave to renew was not based upon new facts in existence at the time of the original motion which would have changed the prior determination, but consisted of factual material that was merely cumulative with respect to the factual material submitted in connection with the prior motion. Accordingly, the motion, in effect, for leave to renew was properly denied. Rivera, J.E, Angiolillo, Eng and Sgroi, JJ., concur.