| Estate of Essig v 5670 58 St. Holding Corp. |
| 2009 NY Slip Op 07581 [66 AD3d 822] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Estate of Anna K. Essig, Deceased, et al.,Appellants, v 5670 58 Street Holding Corp. et al., Respondents, et al.,Defendant. |
—[*1] Alexander M. Dudelson, Brooklyn, N.Y., for respondents.
In an action, inter alia, for a judgment declaring that the plaintiffs are the owners of 225shares of the capital stock of the defendant 5670 58 Street Holding Corp., the plaintiffs appealfrom an order of the Supreme Court, Queens County (Weiss, J.), dated October 2, 2008, whichgranted the motion of the defendants 5670 58 Street Holding Corp., Lorraine Angelillo, andSandra Vaichunas which was for leave to renew their opposition to that branch of the plaintiffs'prior motion which was for summary judgment on their declaratory judgment cause of actionand, upon renewal, vacated a judgment entered August 7, 2008, and denied that branch of theplaintiffs' prior motion.
Ordered that the order is reversed, on the law, with costs, the motion for leave to renew isdenied, and the judgment entered August 7, 2008 is reinstated.
On prior appeals, this Court, inter alia, affirmed an order granting that branch of theplaintiffs' prior motion which was for summary judgment on their cause of action for a judgmentdeclaring that they are the owners of 225 shares of the capital stock of the defendant 5670 58Street Holding Corp. and affirmed an order denying the respondents' prior motion for leave torenew their opposition to that branch of the plaintiffs' prior motion (see Estate of Essig v 5670 58 St. HoldingCorp., 50 AD3d 948 [2008]). Thereafter, the respondents moved again for leave torenew based upon documents discovered four months earlier. The Supreme Court granted themotion and, upon renewal, vacated the judgment entered August 7, 2008, and denied that branchof the plaintiffs' prior motion which was for summary judgment on their declaratory judgmentcause of action. We reverse.
Pursuant to CPLR 2221 (e), a motion for leave to renew "shall be based upon new facts notoffered on the prior motion that would change the prior determination . . . and shallcontain reasonable justification for the failure to present such facts on the prior motion" (CPLR2221 [e] [2], [3]). Moreover, while "a court of original jurisdiction may entertain a motion torenew or to vacate a prior order or judgment on the ground of newly discovered evidence evenafter an appellate court has affirmed the original order or judgment . . . on [a]postappeal motion [to renew] the [movant] bears a heavy burden of showing due diligence inpresenting the new evidence to the [*2]Supreme Court in order toimbue the appellate decision with a degree of certainty" (Levitt v County of Suffolk,166 AD2d 421, 422-423 [1990] [citations omitted; emphasis added]). Here, the respondentsfailed to offer a reasonable explanation for their failure to present the "new facts" in conjunctioneither with their opposition to that branch of the plaintiffs' prior motion which was for summaryjudgment on their declaratory judgment cause of action or with their first motion for leave torenew (see Elder v Elder, 21 AD3d1055 [2005]; Renna v Gullo,19 AD3d 472, 473 [2005]). Accordingly, the respondents' motion for leave to renewshould have been denied. Mastro, J.P., Santucci, Chambers and Lott, JJ., concur.