| Jovanovic v Jovanovic |
| 2012 NY Slip Op 05147 [96 AD3d 1019] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Srdjan Jovanovic, Respondent, v Milica Jovanovic,Appellant. |
—[*1] Mark L. Cortegiano, Middle Village, N.Y., for respondent.
In an action for the equitable distribution of marital property following a foreign judgment ofdivorce, the defendant appeals from an order of the Supreme Court, Queens County (Esposito,J.), dated June 22, 2011, which denied her motion, in effect, for leave to reargue and renew thatbranch of her prior cross motion which was to compel disclosure, which had been denied in anorder of the same court dated September 21, 2009 (Fitzmaurice, J.).
Ordered that the appeal from so much of the order dated June 22, 2011, as denied that branchof the defendant's motion which was, in effect, for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument (seeLamacchia v Schwartz, 94 AD3d 712 [2012]; Grossman v New York Life Ins. Co., 90 AD3d 990 [2011]); and itis further,
Ordered that the order dated June 22, 2011, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Contrary to the defendant's contention, the Supreme Court properly treated the instant motionas a motion for leave to reargue and renew that branch of her prior cross motion which was tocompel disclosure. Although the instant motion was predicated on a different legal argument andsupported by evidence not submitted on the prior cross motion, both motions essentially soughtidentical relief, i.e., disclosure of the plaintiff's income and assets acquired between the date of aforeign judgment of divorce and the date of commencement of this action for equitabledistribution. Thus, the instant motion was, in actuality, one for leave to reargue and renew (see Cunningham v Diers, 14 AD3d528, 529 [2005]; Agayeva v KJ Shuttle Serv., 284 AD2d 488 [2001]; Cangro vCangro, 272 AD2d 286 [2000]; Mucciola v City of New York, 177 AD2d 553, 554[1991]).
Furthermore, the Supreme Court providently exercised its discretion in denying that branchof the instant motion which was, in effect, for leave to renew. A motion for leave to renew "shallbe based upon new facts not offered on the prior motion that would change the priordetermination" and "shall contain reasonable justification for the failure to present such facts onthe [*2]prior motion" (CPLR 2221 [e] [2], [3]; see DeMarquez v Gallo, 94 AD3d1039 [2012]; Matter of Choy v MaiLing Lai, 91 AD3d 772 [2012]). Although the requirement that a motion for renewalmust be based on new facts is a flexible one (see DeMarquez v Gallo, 94 AD3d 1039 [2012]; Matter of Beren v Beren, 92 AD3d676, 677 [2012]), a motion to renew is not a second chance freely given to parties who havenot exercised due diligence in making their first factual presentation, and the Supreme Courtlacks discretion to grant renewal where the moving party omits a reasonable justification forfailing to present the new facts on the original motion (see Bazile v City of New York, 94 AD3d 929 [2012]; Eskenazi v Mackoul, 92 AD3d828, 829 [2012]; Worrell vParkway Estates, LLC, 43 AD3d 436, 437 [2007]; Renna v Gullo, 19 AD3d 472, 473 [2005]). Here, the defendantrelied on additional facts known to her at the time of her prior cross motion withoutdemonstrating a reasonable justification for failing to submit these facts on the earlier crossmotion (see Bazile v City of NewYork, 94 AD3d 929 [2012]; Eskenazi v Mackoul, 92 AD3d at 829; Dervisevic v Dervisevic, 89 AD3d785, 787 [2011]). In any event, the defendant failed to demonstrate that the additional factsshe submitted would change the Supreme Court's prior determination denying that branch of hercross motion which was to compel discovery (see Eskenazi v Mackoul, 92 AD3d at 829).Angiolillo, J.P., Eng, Lott and Austin, JJ., concur.