| Semenov v Semenov |
| 2012 NY Slip Op 06134 [98 AD3d 962] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Igor Semenov, Appellant, v Natalia Semenov,Respondent. |
—[*1] Scott G. Cerbin, Brooklyn, N.Y., for respondent.
In an action for the partition and sale of real property, the plaintiff appeals from (1) so muchof an order of the Supreme Court, Richmond County (Minardo, J.), dated March 4, 2010, asdenied his motion for leave to renew his motion for summary judgment on the complaint, (2) anorder of the same court (D'Oca, J.H.O.) dated September 8, 2010, which denied his secondmotion for leave to renew his motion for summary judgment on the complaint, and (3) an orderof the same court (Minardo, J.) dated June 10, 2011, which denied his motion pursuant to CPLR5015 to vacate the dismissal of the action, to restore the action to the trial calendar, to vacate theorder dated September 8, 2010, and, upon vacatur, to restore his second motion for leave torenew his motion for summary judgment on the complaint to the motion calendar.
Ordered that order dated March 4, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that the orders dated September 8, 2010, and June 10, 2011, are affirmed; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
The parties were married and purchased the subject real property, located in RichmondCounty, during the marriage. Thereafter, the plaintiff returned to his native Latvia, where he hascontinued to reside. In 1998, the plaintiff obtained a divorce from the defendant in Latvia. Thedefendant continued to reside in the subject property.
In November 2004 the plaintiff commenced this action for the partition and sale of thesubject real property allegedly owned by the parties. The defendant contends that the plaintiffexecuted a quitclaim deed on or about September 20, 1997, transferring all of his rights andinterests in the property to her. The plaintiff contests the deed, claiming that it is a forgery. Theparties both moved for summary judgment, and the Supreme Court denied the motions,concluding that a triable issue of fact exists as to the validity of the quitclaim deed. Thereafter, inan order dated March 4, 2010, the Supreme Court, inter alia, denied the plaintiff's motion forleave to renew his motion for summary judgment on the complaint.[*2]
The Supreme Court referred the matter to a judicialhearing officer (hereinafter the J.H.O.) to conduct a nonjury trial on the issues herein. Thereafter,the J.H.O. scheduled a May 5, 2010, trial date with the consent of the parties. The plaintiffrequested and received an adjournment of the May 5, 2010, trial date and a new trial date wasscheduled for July 6, 2010.
On July 6, 2010, the plaintiff failed to appear at trial and his counsel requested a continuanceto secure the plaintiff's appearance. The J.H.O. denied the plaintiff's request for a continuanceand granted the defendant's motion, in effect, to dismiss the complaint for failure to prosecute.
The plaintiff's counsel subsequently moved, for a second time, for leave to renew his motionfor summary judgment on the complaint. In an order dated September 8, 2010, that motion wasdenied.
In an order dated June 10, 2011, the Supreme Court denied the plaintiff's motion pursuant toCPLR 5015 to vacate the dismissal of the action, to restore the action to the trial calendar, tovacate the order dated September 8, 2010, and, upon vacatur, to restore to the motion calendarhis second motion for leave to renew his motion for summary judgment on the complaint.
The Supreme Court properly denied the plaintiff's first motion for leave to renew his motionfor summary judgment on the complaint. "A motion for leave to renew shall be based upon newfacts not offered on the prior motion that would change the prior determination, and shall containreasonable justification for the failure to present such facts on the prior motion" (Bank of N.Y. Mellon v Izmirligil, 88AD3d 930, 932 [2011] [internal quotation marks omitted]). "[A] motion for leave to renewis not a second chance freely given to parties who have not exercised due diligence in makingtheir first factual presentation" (Eskenazi v Mackoul, 92 AD3d 828, 829 [2012] [internal quotationmarks omitted]). "The Supreme Court lacks discretion to grant renewal where the moving partyomits a reasonable justification for failing to present the new facts on the original motion" (Matter of Leone Props., LLC v Board ofAssessors for Town of Cornwall, 81 AD3d 649, 652 [2011] [internal quotation marksomitted]). Here, the plaintiff failed to meet these requirements, as the alleged new facts profferedon his motion would not have changed the Supreme Court's prior determination (seeCPLR 2221 [e] [2]), and he failed to establish a reasonable justification for failing to presentany of the alleged new facts, which were then available to him, on the original motion.
Likewise, in the order dated September 8, 2010, the Supreme Court properly denied theplaintiff's second motion for leave to renew his motion for summary judgment on the complaint,as the plaintiff failed to, inter alia, demonstrate the existence of any new facts not offered on hisfirst motion for leave to renew his motion for summary judgment on the complaint (seeCPLR 2221 [e] [2]).
To vacate the dismissal of the action and to restore the action to the trial calendar, theplaintiff was required to demonstrate both a reasonable excuse for his default and a meritoriouscause of action (see CPLR 5015 [a] [1]; 22 NYCRR 202.27; Feldman v Delaney, 94 AD3d1043 [2012]; Schmitt vJeyalingam, 71 AD3d 757 [2010]). Here, the plaintiff failed to demonstrate a reasonableexcuse for his failure to appear and proceed with trial. Accordingly, the Supreme Courtprovidently exercised its discretion in denying the plaintiff's motion, inter alia, to vacate thedismissal of the action.
The plaintiff's remaining contentions either have been rendered academic in light of ourdetermination or are without merit. Balkin, J.P., Leventhal, Hall and Cohen, JJ., concur.