| Eskenazi v Mackoul |
| 2012 NY Slip Op 01425 [92 AD3d 828] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Lynn Eskenazi et al., Respondents, v Robert E. Mackoul etal., Appellants. |
—[*1] Sobel & Schleier, LLC, Huntington, N.Y. (Curtis Sobel and Christopher J. Roess of counsel),for appellants Robert E. Mackoul, Deborah K. Mackoul, and Hanover Insurance Group. Frederick Eisenbud, Commack, N.Y. (John Pittoni of counsel), for respondents.
In an action to recover damages for personal injuries and injury to property, the defendantOne Beacon Insurance Company appeals, and the defendants Robert E. Mackoul, Deborah K.Mackoul, and Hanover Insurance Group separately appeal from an order of the Supreme Court,Nassau County (Phelan, J.), dated December 17, 2010, which denied the motion of the defendantOne Beacon Insurance Company, in which the defendants Robert E. Mackoul, Deborah K.Mackoul, and Hanover Insurance Group joined, for leave to renew its prior motion, in which thedefendants Robert E. Mackoul, Deborah K. Mackoul, and Hanover Insurance Group joined, interalia, to compel further discovery after the filing of the note of issue, which had been denied in anorder of the same court dated July 1, 2010.
Ordered that the order dated December 17, 2010, is affirmed, with one bill of costs payableby the defendants appearing separately and filing separate briefs.
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]). Although a court has the discretion to grant renewalupon facts known to the movant at the time of the initial motion, the movant must offer areasonable justification for the failure to present those facts on the initial motion (see May v May, 78 AD3d 667[2010]; Schenectady Steel Co., Inc. vMeyer Contr. Corp., 73 AD3d 1013 [2010]; Lawman v Gap, Inc., 38 AD3d 852 [2007]; Lafferty v Eklecco, LLC, 34 AD3d754, 754-755 [2006]). "[A] motion for leave to renew 'is not a second chance freely given toparties who have not exercised due diligence in making their first factual presentation' " (Renna v Gullo, 19 AD3d 472, 473[2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]; see Coccia v Liotti, 70 AD3d 747,753 [2010]; Huma v Patel, 68 AD3d821, 822 [2009]).[*2]
Here, the Supreme Court providently exercised itsdiscretion in denying the motion for leave to renew, since the defendants failed to set forth areasonable justification as to why they did not depose certain individuals or investigate theunderground petroleum storage tank on the plaintiffs' property prior to their initial motion (see Ferdico v Zweig, 82 AD3d1151 [2011]; Huma v Patel, 68AD3d 821 [2009]; Baldwin vMateogarcia, 66 AD3d 806 [2009]; cf. Gonzalez v Vigo Constr. Corp., 69 AD3d 565 [2010]). In anyevent, the defendants failed to demonstrate that the new facts would change the Supreme Court'sprior determination denying their motion to compel further discovery after the filing of the noteof issue (see CPLR 2221 [e] [2]). The existence of the underground petroleum storagetank on the plaintiffs' property was made known to the defendants in January of 2008, prior to theclose of discovery. The defendants' lack of diligence in investigating the tank does not constitutean "unusual or unanticipated circumstance[ ] develop[ing] subsequent to the filing of [the] noteof issue" which would warrant further discovery (22 NYCRR 202.21 [d]; see Tirado v Miller, 75 AD3d 153,161 [2010]; Silverberg v Guzman,61 AD3d 955, 956 [2009]; Marks v Morrison, 275 AD2d 1027 [2000]; AudiovoxCorp. v Benyamini, 265 AD2d 135, 140 [2000]). Mastro, A.P.J., Dillon, Sgroi and Miller,JJ., concur.