| Novosiadlyi v James |
| 2010 NY Slip Op 00938 [70 AD3d 793] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Roman Novosiadlyi, Appellant, et al., Plaintiff, v ChristieJames, Defendant, and Joseph Ippolito, Respondent. |
—[*1] Costantino & Costantino, Copiague, N.Y. (Steven A. Costantino of counsel), forrespondent.
In an action, inter alia, to recover damages for defamation, the plaintiff Roman Novosiadlyiappeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated July 3, 2008,which denied the plaintiffs' motion for leave to renew their opposition to the motion of thedefendant Joseph Ippolito for summary judgment dismissing the complaint insofar as assertedagainst him, which had been determined in an order of the same court dated December 13, 2007.
Ordered that the order dated July 3, 2008, is affirmed, with costs.
The plaintiffs commenced this action alleging, inter alia, that the defendants defamed themduring public hearings on their application for a permit allowing them to use their house inLindenhurst as an owner-occupied two-family home. The defendant Joseph Ippolito moved forsummary judgment dismissing the complaint insofar as asserted against him pursuant to CPLR3212 and Civil Rights Law §§ 70-a and 76-a, and for recovery on his counterclaimfor an award of an attorney's fee, contending that this action was an improper strategic lawsuitagainst public participation (hereinafter SLAPP action) (see 600 W. 115th St. Corp. v VonGutfeld, 80 NY2d 130, 137 n 1 [1992], cert denied 508 US 910 [1993]).
In the order granting Ippolito's motion, the Supreme Court determined that he established hisprima facie entitlement to the protections of Civil Rights Law §§ 70-a and 76-a.Moreover, the court rejected the plaintiffs' opposition, which consisted of only an affirmation ofcounsel, as being without probative value and insufficient to oppose the summary judgmentmotion. Consequently, the Supreme Court granted Ippolito's motion for summary judgmentdismissing the complaint insofar as asserted against him and awarded him summary judgment onhis counterclaim for an award of an attorney's fee to the extent of scheduling an inquest.
Thereafter, the plaintiffs, proceeding pro se, moved pursuant to CPLR 2005 and 2221 forleave to renew their opposition to Ippolito's motion. In an order dated July 3, 2008, the SupremeCourt denied the plaintiffs' motion for leave to renew, finding that no new facts were offered andthat the new arguments offered as new facts would not have changed the prior result. Theplaintiff Roman Novosiadlyi appeals from that order. We affirm.[*2]
A motion for leave to renew must be (1) based upon newfacts not offered on the prior motion that would change the prior determination, and (2) set fortha reasonable justification for the failure to present such facts on the prior motion (seeCPLR 2221 [e] [2], [3]; Caraballo vKim, 63 AD3d 976, 978 [2009]; Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480 [2007]).Here, the plaintiffs failed to submit new facts sufficient to change the court's prior determinationgranting Ippolito's summary judgment motion. Civil Rights Law § 76-a was enacted toprovide special protection for defendants in actions arising from the exercise of their rights ofpublic petition and participation by deterring SLAPP actions (see 600 W. 115th St. Corp. vVon Gutfeld, 80 NY2d at 137 n 1; Singh v Sukhram, 56 AD3d 187, 194 [2008]). Where, as here, thedefendant established that the action involves the rights of public petition and participation(see Civil Rights Law § 76-a [1] [a]), "damages may only be recovered if theplaintiff, in addition to all other necessary elements, shall have established by clear andconvincing evidence that any communication which gives rise to the action was made withknowledge of its falsity or with reckless disregard of whether it was false" (Civil Rights Law§ 76-a [2]; see T.S. Haulers v Kaplan, 295 AD2d 595, 598 [2002]). In addition,summary judgment must be awarded to the defendant unless the plaintiff demonstrates, inopposition, that the action has "a substantial basis in fact and law or is supported by a substantialargument for an extension, modification or reversal of existing law" (CPLR 3212 [h]). Theplaintiffs' submissions in support of their renewal motion failed to meet this burden or otherwiseraise a triable issue of fact as to whether Ippolito knew that his statements were false or that hemade them with reckless disregard of whether they were true. Accordingly, the Supreme Courtproperly denied the plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan, 295AD2d at 598).
Novosiadlyi's remaining contentions are either without merit or not properly before thisCourt. Skelos, J.P., Angiolillo, Balkin and Lott, JJ., concur.