| Huma v Patel |
| 2009 NY Slip Op 09191 [68 AD3d 821] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Uzma Huma et al., Respondents, v Bharat K. Patel et al.,Defendants, and Salahuddin Ahmad, Appellant. |
—[*1] Jonathan Silver, Kew Gardens, N.Y., for respondents.
In an action to recover on two promissory notes, the defendant Salahuddin Ahmad appealsfrom an order of the Supreme Court, Queens County (Rosengarten, J.), dated January 20, 2009,which denied his motion, in effect, for leave to renew his opposition to a prior motion of theplaintiffs Uzma Huma and Faiza Berlas for summary judgment on the complaint, which hadbeen determined in an order entered August 24, 2007, and granted the plaintiffs' cross motion tocompel him to turn over all documents evidencing his ownership in the defendant Star DonutCorp., or any other corporation, to a city marshal.
Ordered that the order dated January 20, 2009 is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the appellant's motion, ineffect, for leave to renew his opposition to a prior motion of the plaintiffs Uzma Huma and FaizaBerlas for summary judgment on the complaint. A motion for leave to renew "shall be basedupon new facts not offered on the prior motion that would change the prior determination"(CPLR 2221 [e] [2]), and "shall contain reasonable justification for the failure to present suchfacts on the prior motion" (CPLR 2221 [e] [3]). Although a court has the discretion to grantrenewal upon facts known to the movant at the time of the original motion (see Ramirez v Khan, 60 AD3d748 [2009]; Matter of ProgressiveNortheastern Ins. Co. v Frenkel, 8 AD3d 390, 391 [2004]; Hasmath v Cameb, 5 AD3d 438,439 [2004]; Bloom v Primus Automotive Fin. Servs., 292 AD2d 410 [2002]), a motionfor leave to renew "is not a second chance freely given to parties who have not exercised duediligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472, 473 [2005] [internal quotationmarks omitted]; see Ramirez v Khan, 60 AD3d at 748; Sobin v Tylutki, 59 AD3d 701,702 [2009]; Lardo v Rivlab Transp.Corp., 46 AD3d 759 [2007]; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2007]).
Here, the new evidence offered in support of the appellant's motion, in effect, for leave torenew consisted of copies of general releases executed by the plaintiffs Mohammed U. Farooqand Mozzam Berlas in settlement of a prior action, which allegedly extinguished the debtunderlying the two promissory notes which are the subject of this action. However, the appellantwas aware of the existence of these releases at the time the summary judgment motion wasmade, and failed to demonstrate that he could not have obtained copies of the releases in time tooppose summary judgment with the exercise of [*2]duediligence. In any event, the appellant failed to demonstrate that the existence of the releaseswarranted a change in the prior determination awarding summary judgment to the plaintiffsUzma Huma and Faiza Berlas, who are the payees on the subject promissory notes. "Themeaning and coverage of a general release depends on the controversy being settled and uponthe purpose for which the release was actually given" (Lefrak SBN Assoc. v KennedyGalleries, 203 AD2d 256 [1994]; see Cahill v Regan, 5 NY2d 292, 299 [1959]; Matter of Brown, 65 AD3d 1140[2009]; Zichron Acheinu Levy, Inc. vIlowitz, 31 AD3d 756 [2006]), and a general release may not be read to cover matterswhich the parties did not desire or intend to dispose of (see Matter of Schaefer, 18 NY2d314, 317 [1966]; Cahill v Regan, 5 NY2d at 299; Spears v Spears Fence, Inc., 60 AD3d 752, 753 [2009]; Rotondi v Drewes, 31 AD3d 734,735-736 [2006]). Although the appellant predicated his motion for leave to renew upon thereleases executed by the plaintiffs Mohammed U. Farooq and Mozzam Berlas in settlement of aprior action, the record does not disclose the nature of the prior action, and the appellant failed tooffer sufficient evidentiary proof to raise a triable issue of fact as to whether the releases wereintended to extinguish the debt underlying the subject promissory notes. Skelos, J.P., Eng,Leventhal and Chambers, JJ., concur.