227 231 LLC 59 LLC AH 227 59 LLC GG 59 LLC v. Sebastean Leoni, Respondent-Tenant-Appellant, and Cecilia Darmandrail, Respondent-Undertenant-Appellant, and "John Doe" and "Jane Doe," Respondents-Undertenants. (2026)

Per Curiam.

Order (Vanessa Fang, J.), dated December 23, 2025, reversed, with $10 costs, renewal granted, and upon renewal, respondents' motion granted to the extent of setting the matter down for a traverse hearing to determine whether respondent Sebastean Leoni was properly served.

Although renewal motions generally should be based on newly discovered facts that could not be offered on the prior motion (see CPLR 2221 [e]), courts have discretion to relax this requirement and grant such a motion "in the interest of justice" (Kaszar v Cho, 160 AD3d 501, 502 [2018]; Mejia v Nanni, 307 AD2d 870, 871 [2003]). In the circumstances here present, and to achieve substantial fairness (see Tishman Constr. Corp. of NY v City of New York, 280 AD2d 374, 376-377 [2001]), we favorably exercise our discretion and grant the renewal motion, since respondent offered a reasonable justification for failing to timely submit this new evidence in his original moving papers and the new evidence would change the prior determination (CPLR 2221 [e] [2], [3]). Respondents' renewed motion contained, among other things, a sworn, nonconclusory denial of service with supporting documentary evidence reflecting respondent Leoni traveling outside of the United States, which was sufficient to raise an issue of fact as to whether service was proper requiring a traverse hearing (see NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]).

Contrary to the conclusion reached below, the waiver provision contained in CPLR 3211 (e) does not apply in a summary proceeding pursuant to Real Property Actions and Proceedings Law (RPAPL) § 711 (1) and (2).

With respect to the ERAP application, the evidence submitted on renewal does not establish that an appeal is pending of the ERAP determination. In the event the traverse is overruled, respondents may renew upon proof that such an appeal is pending.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: October 27, 2026