| Carroway Luxury Homes, LLC v Integra Supply Corp. |
| 2008 NY Slip Op 10331 [57 AD3d 1448] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Carroway Luxury Homes, LLC, Respondent, v Integra SupplyCorporation, Appellant. |
—[*1] Greene, Hershdorfer & Sharpe, Syracuse (Sherry R. Bruce of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, J.), enteredNovember 8, 2007. The order, insofar as appealed from, granted in part the cross motion of plaintifffor leave to renew its motion seeking to strike the amended answer and seeking partial summaryjudgment on liability and sanctions and, upon renewal, granted the motion in part.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, plaintiff's cross motion and motion are denied in their entirety and the amended answer isreinstated in its entirety.
Memorandum: Defendant appeals from an order granting in part the cross motion of plaintiff forleave to renew its motion seeking to strike defendant's amended answer and seeking partial summaryjudgment on liability and sanctions based on defendant's alleged intentional spoliation of evidence and,upon renewal, granting the motion in part. On a prior appeal, we concluded that Supreme Court erredin granting those parts of the motion for partial summary judgment on liability and to strike the amendedanswer, with the exception of the first affirmative defense (Carroway Luxury Homes, LLC v Integra Supply Corp., 52 AD3d 1187[2008]). We now conclude that the court should have denied the cross motion for leave to renew in itsentirety. Although "a court of original jurisdiction may entertain a motion to renew . . . onthe ground of newly discovered evidence even after an [appeal has been taken from] the original order"(Levitt v County of Suffolk, 166 AD2d 421, 422 [1990], lv dismissed 77 NY2d 834[1991]), here, plaintiff failed, inter alia, to support its cross motion with "new facts not offered on theprior motion that would change the prior determination" (CPLR 2221 [e] [2]; see Blazynski v A. Gareleck & Sons, Inc.,48 AD3d 1168, 1170 [2008], lv denied 11 NY3d 825 [2008]; Conley v Central Sq.School Dist., 255 AD2d 981 [1998]). Present—Martoche, J.P., Smith, Fahey and Pine, JJ.