| Aha Sales, Inc. v Creative Bath Prods., Inc. |
| 2013 NY Slip Op 07002 [110 AD3d 1020] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Aha Sales, Inc., Respondent, v Creative BathProducts, Inc., Appellant, et al., Defendant. |
—[*1] Robert L. Folks & Associates, LLP, Melville, N.Y., for respondent.
In an action, inter alia, to recover damages in quantum meruit for services renderedand for unjust enrichment, the defendant Creative Bath Products, Inc., appeals, as limitedby its brief, from so much an order of the Supreme Court, Suffolk County (Spinner, J.),dated December 7, 2012, as denied that branch of its motion which was to renew itsopposition to the plaintiff's prior motion to preclude it from, inter alia, presenting certainevidence at trial, which had been granted in an order of the same court dated November29, 2011.
Ordered that the order dated December 7, 2012, is affirmed insofar as appealed from,with costs.
A motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination . . . and . . .shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [2], [3]; see Empire State Conglomerates v Mahbur, 105 AD3d898, 899 [2013]; WellsFargo Bank, N.A. v Russell, 101 AD3d 860 [2012]). While a court hasdiscretion to entertain renewal based on facts known to the movant at the time of theoriginal motion, the movant must set forth a reasonable justification for the failure tosubmit the information in the first instance (see Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585,585-586 [2012]). Here, the defendant Creative Bath Products, Inc. (hereinafter theappellant), offered new facts not offered on the prior motion, but failed to set forth areasonable justification for its failure to submit the new facts on the prior motion.Accordingly, the Supreme Court properly denied that branch of the appellant's motionwhich was for leave to renew (see Empire State Conglomerates v Mahbur, 105AD3d at 899; Matter ofCatherine V.D. [Rachel G.], 100 AD3d 992, 993 [2012]). Mastro, J.P.,Angiolillo, Leventhal and Chambers, JJ., concur.