| Kamdem-Ouaffo v Pepsico, Inc. |
| 2015 NY Slip Op 08713 [133 AD3d 828] |
| November 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Ricky Kamdem-Ouaffo, Appellant, v Pepsico,Inc., Respondent. |
Ricky Kamdem-Ouaffo, New Brunswick, New Jersey, appellant pro se.
Luboja & Thau, LLP, New York, N.Y. (Richard M. Hunter of counsel), forrespondent.
In an action, inter alia, to recover damages for violation of Labor Law§ 740, the plaintiff appeals from an order of the Supreme Court,Westchester County (Scheinkman, J.), entered October 8, 2013, which denied his motionfor leave to renew and reargue his opposition to that branch of the defendant's priormotion which was for summary judgment dismissing the complaint, which had beengranted in an order of the same court entered July 9, 2013.
Ordered that the appeal from so much of the order dated October 8, 2013, as deniedthat branch of the plaintiff's motion which was for leave to reargue is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that the order dated October 8, 2013, is affirmed insofar as reviewed; and itis further,
Ordered that one bill of costs is awarded to the defendant.
"A motion for leave to renew is not a second chance freely given to parties who havenot exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d1055, 1055 [2005]; seeRose v Levine, 98 AD3d 1015, 1015-1016 [2012]). A motion for leave to renewmust be based on new facts, not offered on the original application, "that would changethe prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justificationfor the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see United Med. Assoc., PLLC vSeneca Ins. Co., Inc., 125 AD3d 959, 960-961 [2015]; Ali v Verizon N.Y., Inc., 116AD3d 722, 723 [2014]; Okumus v Living Room Steak House, Inc., 112 AD3d 799,800 [2013]).
Here, the Supreme Court providently exercised its discretion in denying that branchof the plaintiff's motion which was for leave to renew his opposition to the defendant'ssummary judgment motion. The plaintiff failed to offer a reasonable justification as towhy the newly submitted evidence was not submitted at the time of the prior motion and,in any event, the newly submitted evidence would not have changed the priordetermination (see Ayala vGonzalez, 129 AD3d 874, 875 [2015]; Rose v Levine, 98 AD3d at1016). To the extent the plaintiff raises issues regarding [*2]alleged malpractice by his former attorney, thosecontentions are not properly before this Court. Mastro, J.P., Dickerson, Miller andMaltese, JJ., concur.