| Andrews v New York City Hous. Auth. |
| 2011 NY Slip Op 09573 [90 AD3d 962] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Brenda Andrews et al., Appellants, v New York CityHousing Authority, Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Herzfeld & Rubin, P.C. [MiriamSkolnik] of counsel), for respondent.
In an action to recover damages for personal injuries and wrongful death, etc., the plaintiffsappeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 11, 2010,which denied that branch of their motion which was for leave to renew their opposition to thedefendant's prior motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
By order dated March 18, 2008, the Supreme Court denied the defendant's motion forsummary judgment dismissing the complaint. By decision and order dated October 6, 2009, thisCourt reversed that order and granted the defendant's motion for summary judgment (see Andrews v New York City Hous.Auth., 66 AD3d 619 [2009]). In the order appealed from here, the Supreme Courtdenied that branch of the plaintiffs' motion which was for leave to renew their opposition to thedefendant's prior motion for summary judgment. We affirm.
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 theprior motion" (CPLR 2221 [e] [2], [3]). " '[O]n [a] postappeal motion [to renew] the [movant]bears a heavy burden of showing due diligence in presenting the new evidence to the SupremeCourt in order to imbue the appellate decision with a degree of certainty' " (Estate of Essig v 5670 58 St. HoldingCorp., 66 AD3d 822, 823 [2009] [emphasis omitted], quoting Levitt v County ofSuffolk, 166 AD2d 421, 423 [1990]). A "motion for leave to renew 'is not a second chancefreely given to parties who have not exercised due diligence in making their first factualpresentation' " (Renna v Gullo, 19AD3d 472, 472 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]).
Here, the plaintiffs failed to meet their "heavy burden" of showing due diligence (Estateof Essig v 5670 58 St. Holding Corp., 66 AD3d at 823; see Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680 [2008]; see also Ferdico v Zweig, 82 AD3d1151, 1152 [2011]; Elder vElder, 21 AD3d 1055, [*2]1056 [2005]; Renna vGullo, 19 AD3d at 473; Yarde vNew York City Tr. Auth., 4 AD3d 352, 353 [2004]; Welch Foods v Wilson, 247AD2d 830, 830-831 [1998]; Levitt v County of Suffolk, 166 AD2d at 423; City ofWhite Plains v Deruvo, 159 AD2d 534, 534 [1990]). Accordingly, the Supreme Courtproperly denied that branch of the plaintiffs' motion which was for leave to renew. Rivera, J.P.,Balkin, Eng and Austin, JJ., concur.