875 RIVER VIEW REALTY LLC v. MARZULLO (2026)

Order (Vanessa Fang, J.), dated August 8, 2024, affirmed, with $10 costs. Order (Vanessa Fang, J.), dated December 3, 2024, insofar as it denied respondent's second motion for summary judgment, affirmed, and the appeal therefrom, insofar as it denied reargument, dismissed, without costs, as taken from a nonappealable order.

Civil Court properly denied respondent's motion for summary judgment dismissing the holdover petition. The dismissal of a prior holdover proceeding commenced by 25 Indian Road Owners PC for lack of standing was not a final determination on the merits for res judicata purposes (see Pullman Group LLC v Prudential Ins. Co. of Am., 297 AD2d 578 [2002], lv dismissed 99 NY2d 610 [2003]). Thus petitioner, the proprietary lessee of the apartment, is not precluded from maintaining this proceeding (see Homelink Intl. Inc. v Law Offs. of Sanjay Chaubey, 242 AD3d 455, 456 [2025]).

Nor has respondent demonstrated as a matter of law that the proceeding has been rendered moot by the execution of a renewal lease between the parties, since triable issues are raised as to the bona fides of this renewal lease, which petitioner expressly denies offering (see Park Towers S. Co., LLC v Mandal, 63 Misc 3d 134[A], 2019 NY Slip Op 50471 [App Term, 1st Dept 2019]). Likewise, respondent's submissions were insufficient as a matter of law to meet her affirmative obligation of establishing that she resided in the subject apartment for the requisite period immediately prior to her parent's death (see 9 NYCRR 2523.5 [b] [1]).

Respondent's second motion for partial summary judgment was properly denied. Respondent failed to demonstrate the applicability of any exception to the general rule that “[s]uccessive motions for summary judgment should not be entertained” (Jones v 636 Holding Corp., 73 AD3d 409, 409 [2010]). Respondent's second summary judgment motion was admittedly based on evidence available to her at the time she filed her initial motion (see Lorne v 50 Madison Ave. LLC, 198 AD3d 483 [2021]) and was properly rejected for failure to show due diligence in attempting to obtain the record before the submission of the prior motion (see Taub v Art Students League of NY, 63 AD3d 630, 631 [2009]). For these same reasons, the second motion will not be treated as a motion to renew the first summary judgment motion (see Elizon Master Participation Trust I, U.S. Bank Trust N.A. v Ali, 237 AD3d 580, 581 [2025]; Taylor v Brooklyn Hosp., 187 AD2d 714, 715 [1992]).

In any event, denial on the merits of the second motion would be warranted. On this record, the misdescription of the regulatory status of the apartment “cannot be ascribed to a venal motive” (546 West 156th Street HDFC v Smalls, 43 AD3d 7, 11 [2007]).

The appeal from the remainder of the December 3, 2024 order is dismissed, as no appeal lies from the denial of a motion for reargument (see Brito v Allstate Ins. Co., 135 AD3d 568, 569 [2016]).

We have considered respondent's remaining contentions and find them unpreserved and/or without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.