MADISON PARK DEVELOPMENT ASSOCIATES LLC v. 10 (2018)

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered May 20, 2015, which denied defendants Judith Febbraro, Gerald Magpily and Ellen Ackrish's motion for attorneys' fees, unanimously affirmed, with costs.

Defendants sought the same relief of attorneys' fees in two separate motions, albeit on different grounds, making the second motion essentially one for renewal (Sheehan v. Carvalho, 12 A.D. 430, 431–432, 42 N.Y.S. 222 [1st Dept. 1896] ).  In the second motion, defendants asserted “new facts” in the form of an indemnification provision.  However, they failed to identify the second motion as a renewal motion, or to provide any explanation as to why they did not make the indemnification provision argument in the first motion.  We have previously held that Supreme Court lacks discretion to grant leave to renew “where the moving party omit[ted] a reasonable justification for failing to present the new facts on the original motion” (Hernandez v. Nwaishienyi, 148 A.D.3d 684, 687, 48 N.Y.S.3d 467 [1st Dept. 2017], lv dismissed in part and denied in part 30 N.Y.3d 1013, 66 N.Y.S.3d 224, 88 N.E.3d 384 [2017];  see also Matter of Beiny [Weinberg], 132 A.D.2d 190, 209–210, 522 N.Y.S.2d 511 [1st Dept. 1987], lv dismissed 71 N.Y.2d 994, 529 N.Y.S.2d 277, 524 N.E.2d 879 [1988] ).  For this reason, Supreme Court should have refused to grant defendants leave to make the motion.

Even if the court had considered the evidence offered by defendants, it is not “unmistakably clear” from the language of the indemnification provision that the parties intended that plaintiff would indemnify defendants for legal fees incurred in connection with this defamation, fraud, and tortious interference action (see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989];  Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 490, 787 N.Y.S.2d 708, 821 N.E.2d 133 [2004] ).  The defamation, fraud, and tortious interference claims against defendants did not “directly arise from” plaintiff's failure to complete the work, but rather from defendants' actions in their capacity as board members.  Moreover, there is no evidence that the parties' intended this provision to be so broad as to force plaintiff to indemnify defendants for tort claims brought by plaintiff against defendants.

We have considered the remaining arguments, and find them unavailing.