| Vieyra v Penn Toyota, Ltd. |
| 2014 NY Slip Op 02573 [116 AD3d 840] |
| April 16, 2014 |
| Appellate Division, Second Department |
| George Vieyra, Individually and on Behalf of All OthersSimilarly Situated, Appellant, v Penn Toyota, Ltd., et al.,Respondents. |
—[*1] Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel),for respondent Penn Toyota, Ltd. Reed Smith LLP, New York, N.Y. (Andrew B. Messite and Kerren B. Zinner ofcounsel), for respondent Hann Financial Services Corporation.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals from (1) an order of the Supreme Court, Nassau County (Mahon, J.), dated May22, 2012, which denied his motion, inter alia, for leave to renew his opposition to thosebranches of the defendants' separate motions which were to compel arbitration, whichhad been granted in a prior order of the same court dated October 27, 2011, (2) an orderof the same court, dated June 29, 2012, which granted the defendants' cross motionspursuant to CPLR 7504 and 9 USC § 5 to appoint a substitute arbitrator, and (3) anorder of the same court, dated July 30, 2012, which amended the order dated June 29,2012, by appointing a different substitute arbitrator.
Ordered that the orders are affirmed, with one bill of costs.
In January 2007, the plaintiff entered into an automobile lease with the defendantPenn Toyota, Ltd. (hereinafter Penn). The lease was subsequently assigned by Penn tothe defendant Hann Financial Services Corporation (hereinafter Hann). The plaintiffcommenced the instant action to recover damages against the defendants Penn and Hann,in which he alleged that the defendants, inter alia, violated the New York Motor VehicleRetail Leasing Act (Personal Property Law art 9-A).
In 2011, the defendants separately moved, inter alia, to compel arbitration basedupon the arbitration clause in the automobile lease, which provided that any disputebetween the parties to the lease, or their assignees, was to be referred to arbitration beforethe National Arbitration Forum (hereinafter the NAF). In an order dated October 27,2011, the Supreme Court, inter alia, granted those branches of the defendants' separatemotions which were to compel arbitration.
Thereafter, the plaintiff moved for leave to renew his opposition to those branches ofthe defendants' motions which were to compel arbitration, and for related relief, on theground that the NAF, by virtue of a consent decree issued in 2009, was barred fromarbitrating consumer [*2]disputes (see State ofMinnesota v National Arbitration Forum, Inc., 2009 Minn Dist LEXIS 340 [Dist Ct,July 28, 2009, No. 27-CV-09-18550]). The defendants separately cross-moved to appointa substitute arbitrator pursuant to CPLR 7504. In an order dated May 22, 2012, theSupreme Court denied the plaintiff's motion. In its subsequent orders, the Supreme Courtgranted the defendants' separate cross motions and appointed a substitute arbitrator.
The plaintiff's motion for leave to renew was based upon facts which were a matterof public record at the time the defendants' original motions were made. "A motion forleave to renew must be 'based upon new facts not offered on the prior motion that wouldchange the prior determination' and the movant must state a 'reasonable justification forthe failure to present such facts on the prior motion' " (Zarecki & Assoc., LLC vRoss, 50 AD3d 679, 680 [2008], quoting CPLR 2221 [e]). Although therequirement that a motion for leave to renew should be based on new facts is a flexibleone, 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' " (Yebo v Cuadra, 98 AD3d504, 506 [2012], quoting Renna v Gullo, 19 AD3d 472, 473 [2005]). Under thecircumstances of this case, renewal was properly denied. The plaintiff did not exercisedue diligence in pursuing his claim that the dispute was not arbitrable on the ground thatthe NAF was unavailable to serve as arbitrator.
The plaintiff's remaining contentions either are without merit or need not beaddressed in light of our determination. Rivera, J.P., Lott, Roman and Hinds-Radix, JJ.,concur.