| Matter of Catherine V.D. (Rachel G.) |
| 2012 NY Slip Op 08120 [100 AD3d 992] |
| November 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Catherine V.D. Nassau County Department ofSocial Services, Respondent; Rachel G., Appellant, et al.,Respondent. |
—[*1] John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), forpetitioner-respondent. Edward J. Emanuele, Mineola, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 10, the mother appeals from (1) an orderof the Family Court, Nassau County (Dane, J.), dated March 15, 2012, which denied her motionfor summary judgment dismissing the petition insofar as asserted against her, and (2) an order ofthe same court dated May 2, 2012, which denied her motion for leave to renew and reargue hermotion for summary judgment dismissing the petition insofar as asserted against her.
Ordered that the order dated March 15, 2012, is affirmed, without costs or disbursements;and it is further,
Ordered that the appeal from so much of the order dated May 2, 2012, as denied that branchof the mother's motion which was for leave to reargue is dismissed, without costs ordisbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated May 2, 2012, is affirmed insofar as reviewed, without costs ordisbursements.
The Family Court properly denied the mother's motion for summary judgment dismissing thepetition insofar as asserted against her. In opposition to the mother's prima facie showing that shehad participated in planning for the subject child's care, the petitioner submitted evidence that putinto dispute a number of relevant facts, including the level of the mother's cooperation with thepetitioner and the New Jersey Division of Youth and Family Services, and the nature of thesubject child's needs. As triable issues of fact remained, the mother was not entitled to summaryjudgment (cf. Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178,182 [1994]).[*2]
The Family Court also properly denied that branch of themother's motion which was for leave to renew. A motion for leave to renew "shall be based uponnew facts" and "shall contain reasonable justification for the failure to present such facts on theprior motion" (CPLR 2221 [e] [3]; seeCapozzoli v Capozzoli, 81 AD3d 584, 585 [2011]). A motion for leave to renew isaddressed to the sound discretion of the motion court, and the requirement that a motion for leaveto renew be based upon newly discovered facts is a flexible one (see Matter of Gold v Gold, 53 AD3d485, 487 [2008]). Where no reasonable justification is given, the court must deny the motion(see Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]).
Here, in support of that branch of her motion which was for leave to renew, the motherprovided certain progress notes made by the petitioner's caseworkers regarding their discussionswith the mother about the subject child. As the Family Court noted, however, the mother did notprovide a sufficient justification for her failure to submit those notes with her summary judgmentmotion. Indeed, although the mother did not obtain the notes until after she filed her motion, shedid not show that she made any effort to serve discovery requests or otherwise obtain relevantdocuments from the petitioner before she made her original motion. Under those circumstances,the Family Court did not improvidently exercise its discretion in denying the subject branch ofthe mother's motion, as "[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" (Worrell v Parkway Estates, LLC, 43AD3d 436, 437 [2007]). Skelos, J.P., Florio, Leventhal and Hall, JJ., concur.