| Fardin v 61st Woodside Assoc. |
| 2015 NY Slip Op 00841 [125 AD3d 593] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| Kazi Fardin, an Infant, by His Mother and NaturalGuardian, Lina Babul, et al., Respondents, v 61st Woodside Associates et al.,Appellants. |
Bernard Ouziel, Great Neck, N.Y., for appellants.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County(Agate, J.), entered April 30, 2013, as denied their motion, in effect, for leave to reargueand renew their prior motion to vacate a judgment entered September 23, 2008, which,upon an order of the same court dated November 29, 2006, granting the plaintiffs'unopposed motion for leave to enter judgment against them on the issue of liability upontheir failure to appear or answer the complaint, and after an inquest, was in favor of theplaintiffs and against them in the principal sum of $900,000.
Ordered that the appeal from so much of the order entered April 30, 2013, as deniedthat branch of the defendants' motion which was for leave to reargue is dismissed,without costs or disbursements, as no appeal lies from an order denying reargument; andit is further,
Ordered that the order entered April 30, 2013, is affirmed insofar as reviewed,without costs or disbursements.
The plaintiffs were tenants in an apartment building located at 61-09 39th Avenue inWoodside, owned by the defendant 61st Woodside Associates and managed by thedefendant Sarva Management Corporation (hereinafter together the defendants). In July2006, after the infant plaintiff was found to have elevated blood lead levels, the plaintiffscommenced this action. An affidavit of service indicated that the defendant 61stWoodside Associates, a partnership, was served with the summons and complaint bydelivery to Wilson Guerrero, the general agent of the partnership. A separate affidavit ofservice indicated that the defendant Sarva Management Corporation was served viadelivery of the summons and complaint to an agent in the Office of the New YorkSecretary of State. The defendants failed to appear in the action, interpose an answer, orotherwise move with respect to the complaint. In an order dated November 29, 2006, theSupreme Court granted the plaintiffs' unopposed motion for a default judgment againstthe defendants. An inquest on damages was conducted on January 28, 2008, but norepresentative from either of the defendants was present. The Supreme Court awardeddamages to the plaintiffs in the principal sum of $900,000. A judgment was entered onSeptember 23, 2008, in favor of the plaintiffs and against the defendants in the principalsum of $900,000. In October 2011, the defendants, inter alia, moved pursuant to CPLR5015 (a) (4) to vacate the judgment, alleging that they had not been properly served withthe summons and complaint. A hearing to determine the validity of service of processwas held on September 28, 2012, at which the Supreme Court heard testimony from bothprocess servers. Although the plaintiffs subpoenaed Wilson Guerrero and Ramesh Sarva,the defendants' principal, they failed to appear. In an order dated October 10, 2012, theSupreme Court, inter alia, determined [*2]that theplaintiffs had properly served the defendants with the summons and complaint anddenied the defendants' motion to vacate the default judgment. Thereafter, the defendantsmoved, in effect, for leave to reargue and renew their prior motion. The plaintiffsopposed the motion. In an order entered April 30, 2013, the Supreme Court, inter alia,denied the defendants' motion.
" 'A motion for leave to renew is addressed to the sound discretion of thecourt' " (Singh v AvisRent A Car Sys., Inc., 119 AD3d 768, 771 [2014], quoting Matheus v Weiss, 20 AD3d454, 454-455 [2005]). CPLR 2221 provides that a motion for leave to renew "shallbe based 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 Matter of O'Gorman vO'Gorman, 122 AD3d 744 [2014]). However, a motion for leave to renew "isnot a second chance freely given to parties who have not exercised due diligence inmaking their first factual presentation" (Coccia v Liotti, 70 AD3d 747, 753 [2010] [internalquotation marks omitted]; seeDoviak v Finkelstein & Partners, LLP, 90 AD3d 696, 700-701[2011]).
Contrary to the defendants' contention, the Supreme Court providently exercised itsdiscretion in denying that branch of their motion which was for leave to renew their priormotion to vacate the default judgment entered September 23, 2008. In support of thatbranch of their motion, the defendants submitted an affidavit of Guerrero, whichcontained information that they did not submit in support of their original motion tovacate. However, the defendants failed to set forth a reasonable justification for notsubmitting this affidavit in support of their prior motion.
The defendants' remaining contentions either are without merit or are improperlyraised for the first time on appeal. Skelos, J.P., Dillon, Miller and LaSalle, JJ.,concur.