| Davi v Occhino |
| 2014 NY Slip Op 02253 [116 AD3d 651] |
| April 2, 2014 |
| Appellate Division, Second Department |
| Flippo Davi, Appellant, v Maria Occhino,Respondent. |
—[*1] Palmeri & Gaven, New York, N.Y. (Daniel F. Gaven of counsel), forrespondent.
In an action, inter alia, to recover damages for trespass and private nuisance, theplaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.),entered October 15, 2012, which denied his motion pursuant to CPLR 2221 (e), in effect,for leave to renew his prior cross motion to reject a referee's report (Geller, Ref.) datedMarch 5, 2009, made after a hearing, recommending that judgment be entered in favor ofthe defendant dismissing the complaint, or, in the alternative, pursuant to CPLR 5015 (a)to modify an order of the same court dated August 19, 2009, which confirmed thereferee's report.
Ordered that the order entered October 15, 2012, is affirmed, 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" (CPLR 2221 [e] [2]), and "shallcontain reasonable justification for the failure to present such facts on the prior motion"(CPLR 2221 [e] [3]). A court of original jurisdiction may entertain a motion for leave torenew based on new facts even after an appellate court has affirmed the original order(see Specialized Realty Servs.,LLC v Town of Tuxedo, 106 AD3d 987 [2013]; Sealey v Westend Gardens Hous.Dev. Fund Co., Inc., 97 AD3d 653, 654-655 [2012]). However, on apost-appeal motion to renew, "the movant bears a 'heavy burden of showing duediligence in presenting the new evidence to the Supreme Court' in order to imbue theappellate decision with a degree of certainty" (Derby v Bitan, 112 AD3d 881, 882 [2013], quotingLevitt v County of Suffolk, 166 AD2d 421, 423 [1990]; see SpecializedRealty Servs., LLC v Town of Tuxedo, 106 AD3d at 988; Abrams v Berelson, 94 AD3d782, 784 [2012]; Andrewsv New York City Hous. Auth., 90 AD3d 962, 963 [2011]).
In support of that branch of the plaintiff's motion which was, in effect, for leave torenew his prior cross motion to reject the referee's report, the plaintiff submitted newevidence that he obtained a certificate of occupancy authorizing him to park one vehiclein the rear of his property. Contrary to the Supreme Court's determination, the plaintiff'smotion was based on "new facts" within the ambit of CPLR 2221 (e) (see Ramos v City of NewYork, 61 AD3d 51, 54 [2009]; Chunqi Liu v Wong, 46 AD3d 735 [2007]; Luna v Port Auth. of N.Y. &N.J., 21 AD3d 324, 326 [2005]). However, the plaintiff did not move for leaveto renew until nearly two years after he obtained the new certificate of [*2]occupancy, and over one year after this Court affirmed anorder dated August 19, 2009, which confirmed the referee's report (see Davi v Occhino, 84 AD3d1011 [2011]). Under these circumstances, the plaintiff did not meet his "heavyburden" of showing that he exercised due diligence in presenting these new facts to theSupreme Court (Sealey v Westend Gardens Hous. Dev. Fund Co., Inc., 97 AD3dat 655 [internal quotation marks omitted]; Abrams v Berelson, 94 AD3d at 784[internal quotation marks omitted]; Andrews v New York City Hous. Auth., 90AD3d at 963 [internal quotation marks omitted]). In any event, the plaintiff failed toshow that these new facts would have changed the Supreme Court's prior determination(see Abrams v Berelson, 94 AD3d at 784; see also Courtview Owners Corp. v Courtview Holding B.V.,113 AD3d 722 [2014]; Coxv Cox, 112 AD3d 875 [2013]). Accordingly, the Supreme Court properly deniedthat branch of the plaintiff's motion which was, in effect, for leave to renew his priorcross motion to reject the referee's report.
The Supreme Court also properly denied that branch of the plaintiff's motion whichwas, in the alternative, pursuant to CPLR 5015 (a) to modify the order dated August 19,2009, which confirmed the referee's report. Contrary to the plaintiff's contention, thecertificate of occupancy issued on or about August 2, 2010, did not constitute newlydiscovered evidence within the meaning of CPLR 5015 (a) (2) because it was not inexistence at the time the order dated August 19, 2009, was issued (see Chase Home Fin., LLC vQuinn, 101 AD3d 793 [2012]; Coastal Sheet Metal Corp. v RJR Mech. Inc., 85 AD3d420, 421 [2011]; Matter of Dyno v Village of Johnson City, 255 AD2d 737,738 [1998]; Pezenik v Milano, 137 AD2d 748, 749 [1988]).
The plaintiff's remaining contentions are without merit Eng, P.J., Dillon, Maltese andDuffy, JJ., concur.