PIZZAROTTI LLC v. CABGRAM DEVELOPER LLC (2023)

DECISION & ORDER

In an action to recover damages for breach of contract and on an account stated, the plaintiff appeals from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated July 14, 2021.  The order, insofar as appealed from, denied the plaintiff's cross-motion for leave to renew its opposition to the defendant's motion pursuant to CPLR 5015(a) to vacate a clerk's judgment dated January 2, 2020, in favor of the plaintiff and against the defendant in the total sum of $2,334,243.75, entered upon the defendant's failure to appear or answer the complaint, which had been granted in an order of the same court (Bruce M. Balter, J.) dated August 13, 2020.

ORDERED that the order dated July 14, 2021, is affirmed insofar as appealed from, with costs.

The underlying facts of this action can be found in our decision and order in a related appeal decided herewith (Pizzarotti, LLC v. CabGram Developer, LLC, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 5944077 [Appellate Division Docket No. 2020–07130;  decided herewith]).  The plaintiff appeals from so much of an order as denied its cross-motion for leave to renew its opposition to the defendant's motion pursuant to CPLR 5015(a) to vacate a clerk's judgment dated January 2, 2020, in favor of the plaintiff and against the defendant in the total sum of $2,334,243.75, entered upon the defendant's failure to appear or answer the complaint, which had been granted in an order dated August 13, 2020.

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and “shall contain reasonable justification for the failure to present such facts on the prior motion” (id. § 2221[e][3]).  Here, the plaintiff failed to offer new evidence which would have changed the prior determination.  Accordingly, the Supreme Court properly denied the plaintiff's cross-motion for leave to renew (see Vassiliou–Sideris v. Nautilus, Inc., 186 A.D.3d 1758, 1759–1760, 129 N.Y.S.3d 791).

BARROS, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.