| Barbieri v Miles |
| 2016 NY Slip Op 04597 [140 AD3d 1692] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| Sal Barbieri, Doing Business as Northside Roofing,Respondent, v David R. Miles, Appellant. |
Pheterson Spatorico LLP, Rochester (Derrick A. Spatorico of counsel), fordefendant-appellant.
Thomas C. Sanfilipo, Rochester, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo,J.), entered December 19, 2014. The order granted the motion of plaintiff for leave torenew his motion for summary judgment dismissing defendant's counterclaims and, uponrenewal, granted the motion for summary judgment and dismissed thecounterclaims.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw without costs, the motion is denied and the counterclaims are reinstated.
Memorandum: Defendant appeals from an order that granted plaintiff's motion forleave to renew his prior motion for summary judgment dismissing defendant'scounterclaims and, upon renewal, dismissed the counterclaims. Plaintiff commenced thisaction asserting a single cause of action for breach of contract, alleging that defendantfailed to pay plaintiff for the materials and the work he performed to replace the roof ondefendant's residence. In his amended answer, defendant asserted counterclaims fordamages based on, inter alia, plaintiff's failure to replace the roof in a workmanlikemanner. Plaintiff initially sought summary judgment on his complaint and summaryjudgment dismissing the counterclaims but, in a letter from his attorney to SupremeCourt, he clarified that the motion contained a "typographical error" and that he soughtsummary judgment only on the counterclaims. The court nevertheless stated in itsdecision on the original motion that plaintiff "moved for summary judgment, seekingpayment for the original roof work." Plaintiff thereafter moved for leave to renew hismotion on the grounds that the court had misconstrued his original motion, and that hehad obtained new evidence in support of his original motion, i.e., a release that defendanthad executed releasing plaintiff "from any and all claims past and future" inconsideration of the money paid to defendant by plaintiff's insurance carrier. Defendantopposed the motion for leave to renew on the ground that plaintiff had the release in hispossession several months before he moved for summary judgment dismissing thecounterclaims.
We agree with defendant that the court erred in granting plaintiff's motion for leaveto renew. Although a court has discretion to grant a motion for leave to renew" 'in the interest of justice, upon facts which were known to the movant at thetime the original motion was made' . . . , it may not exercise that discretionunless the movant establishes a 'reasonable justification for the failure to present suchfacts on the prior motion' " (Robinson v Consolidated Rail Corp., 8 AD3d 1080, 1080[2004]). Here, plaintiff failed to provide a reasonable justification for his failure topresent the release in support of his original motion for summary judgment dismissingthe counterclaims (see GMACMtge., LLC v Spindelman, 136 AD3d 1366, 1367 [2016]).Present—Whalen, P.J., Smith, Lindley, NeMoyer and Scudder, JJ.