| Okumus v Living Room Steak House, Inc. |
| 2013 NY Slip Op 08418 [112 AD3d 799] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Macit Okumus, Respondent, v The Living RoomSteak House, Inc., Doing Business as The Living Room Steak House and Lounge,Appellant. |
—[*1] Van Leer & Greenberg, New York, N.Y. (Howard B. Greenberg and Evan VanLeer-Greenberg of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals (1) froman order of the Supreme Court, Kings County (F. Rivera, J.), dated April 27, 2012, whichdenied its motion to vacate a so-ordered stipulation dated December 13, 2011, and (2), aslimited by its brief, from so much of an order of the same court dated September 7, 2012,as denied that branch of its motion which was for leave to renew.
Ordered that the order dated April 27, 2012, is affirmed; and it is further,
Ordered that the order dated September 7, 2012, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court providently exercised its discretion in denying the defendant'smotion to vacate a so-ordered stipulation dated December 13, 2011 (hereinafter thestipulation), precluding the defendant from offering evidence as to liability at trial if itdid not schedule depositions by a date certain. The stipulation, signed by counsel foreach party in this action during a court appearance, is a binding contract (seeCPLR 2104; Kirkland vFayne, 78 AD3d 660 [2010]; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d706 [2007]; Aivaliotis vContinental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]). While a courtmay relieve a party of the consequences of a stipulation made during litigation wherethere is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, oraccident (see Hallock v State of New York, 64 NY2d 224, 230 [1984]; Siltanv City of New York, 300 AD2d 298 [2002]), here, the plaintiff failed to demonstrategood cause sufficient to invalidate the stipulation (see Kirkland v Fayne, 78AD3d at 660; Utica Mut. Ins. Co. v Swim Tech Pool Servs., Inc., 37 AD3d at706).
To the extent that the defendant sought to vacate its default in complying with thestipulation, it failed to make the requisite showing. The stipulation functioned as aconditional order of preclusion, which became absolute upon the defendant's failure tocomply (see Kirkland v Fayne, [*2]78 AD3d at660; Siltan v City of New York, 300 AD2d at 298). To avoid the adverse impactof the stipulation, the defendant was required to demonstrate a reasonable excuse for itsfailure to comply and the existence of a potentially meritorious defense to the action(see Kirkland v Fayne, 78 AD3d at 661; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d907, 908 [2007]; Siltan v City of New York, 300 AD2d at 298). Here, in itsmoving papers, the defendant failed to offer a reasonable excuse for its failure to complywith the provision of the stipulation requiring it to schedule Sead Pejcinovic's depositionwithin 90 days of the stipulation, and failed to offer any potentially meritorious defenseto the action.
"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d454, 454-455 [2005]). Pursuant to CPLR 2221, a motion for leave to renew "shall bebased upon new facts not offered on the prior motion that would change the priordetermination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for thefailure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Bank of N.Y. Mellon vIzmirligil, 88 AD3d 930, 932 [2011]; Worrell v Parkway Estates, LLC, 43 AD3d 436, 437[2007]). "A motion for leave to renew is not a second chance freely given to parties whohave not exercised due diligence in making their first factual presentation" (Worrell vParkway Estates, 43 AD3d at 437; see Sobin v Tylutki, 59 AD3d 701, 702 [2009]; Renna v Gullo, 19 AD3d472, 473 [2005]). Here, the facts set forth in support of renewal were available to thedefendant at the time it made its prior motion to vacate the stipulation, and it failed todemonstrate a reasonable justification for failing to submit such facts on the prior motion(see Deutsche Bank Natl. TrustCo. v Wilkins, 97 AD3d 527, 528-529 [2012]; Sobin v Tylutki, 59AD3d at 702; Worrell v Parkway Estates, LLC, 43 AD3d at 437). Accordingly,renewal was properly denied. Skelos, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.