| Yerushalmi v Yerushalmi |
| 2011 NY Slip Op 02657 [82 AD3d 1217] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Malka Yerushalmi, Respondent, v Joseph Yerushalmi,Appellant. |
—[*1] Schlissel Ostrow Karabatos, PLLC, Garden City, N.Y. (Elena Karabatos, Neil S. Cohen, andLisa R. Schoenfeld of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from an order of theSupreme Court, Nassau County (Spinola, J.), dated May 28, 2009, which denied his motion, ineffect, for leave to renew his prior motion to modify an order of the same court dated March 15,2004, which, inter alia, awarded pendente lite relief to the plaintiff, which motion was denied byorder of the same court (Diamond, J.), dated August 13, 2007.
Ordered that the order dated May 28, 2009, is affirmed, with costs.
" 'A motion for leave to renew must (1) be based upon new facts not offered on a priormotion that would change the prior determination, and (2) set forth a reasonable justification forthe failure to present such facts on the prior motion' " (Swedish v Beizer, 51 AD3d 1008,1010 [2008], quoting Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR2221 [e]; Matter of 171 Sterling, LLC v Stone Arts, Inc., 66 AD3d 688 [2009]). " 'Leaveto renew is not warranted where the factual material adduced in connection with the subsequentmotion is merely cumulative with respect to the factual material submitted in connection with theoriginal motion' " (Matter of Orange & Rockland Util. v Assessor of Town ofHaverstraw, 304 AD2d 668, 669 [2003], quoting Stone v Bridgehampton RaceCircuit, 244 AD2d 403, 403 [1997]; see City of New York v St. Paul Fire & Mar. Ins.Co., 21 AD3d 982 [2005]).
Here, the defendant's motion, in effect, for leave to renew was not based upon new facts inexistence at the time of the original motion which would have changed the prior determination,but consisted of factual material that was merely cumulative with respect to the factual materialsubmitted in connection with the prior motion. Accordingly, the motion, in effect, for leave torenew was properly denied. Rivera, J.P., Angiolillo, Eng and Sgroi, JJ., concur.