| May v May |
| 2010 NY Slip Op 07903 [78 AD3d 667] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Joanne Cornell May, Respondent, v Craig May,Appellant. |
—[*1] Gary S. Josephs, Setauket, N.Y., for respondent.
In an action, inter alia, to recover possession of certain real property, the defendant appeals, aslimited by his notice of appeal and brief, from so much of an order of the Supreme Court, SuffolkCounty (Pines, J.), dated April 20, 2009, as denied that branch of his motion which was for leave torenew that branch of his prior motion which was for summary judgment on his fourth counterclaim,which had been denied in an order of the same court dated December 9, 2008, and his opposition tothe plaintiff's cross motion for summary judgment on the first, second, third, and fourth causes of action,which had been granted in the order dated December 9, 2008.
Ordered that the order dated April 20, 2009, is affirmed insofar as appealed from, with costs.
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. . . shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [2], [3]). Although a court has the discretion to grant renewal upon factsknown to the movant at the time of the original motion (see Schenectady Steel Co., Inc. v Meyer Contr. Corp., 73 AD3d 1013,1015 [2010]; Huma v Patel, 68 AD3d821, 822 [2009]; Lawman v Gap,Inc., 38 AD3d 852 [2007]; Gadson v New York City Hous. Auth., 263 Ad2d 464[1999]), "a motion for leave to renew 'is not a second chance freely given to parties who have notexercised due diligence in making their first factual presentation' " (Renna v Gullo 19 AD3d 472, 473 [2005], quoting Rubinstein vGoldman, 225 AD2d 328, 329 [1996]; see Coccia v Liotti, 70 AD3d 747, 752-753 [2010]; Huma vPatel, 68 AD3d at 822). Here, the Supreme Court providently exercised its discretion in denyingthat branch of the defendant's motion which was for leave to renew since the defendant failed to offer areasonable justification as to why he did not submit the subject documents in support of his initial motionand in opposition to the plaintiff's cross motion (see CPLR 2221 [e] [3]; Huma vPatel, 68 AD3d at 822; Zarecki &Assoc., LLC v Ross, 50 AD3d 679 [2008]; American Audio Serv. Bur. Inc. v AT & T Corp., 33 AD3d 473, 476[2006]).
In light of our determination, we do not reach the defendant's remaining contentions. Mastro, J.P.,Fisher, Leventhal and Belen, JJ., concur.