IN RE: Baruch GLAUBER (2024)

DECISION & ORDER

In a proceeding, inter alia, pursuant to CPLR article 75 to compel arbitration, G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber appeal from an order of the Supreme Court, Kings County (Robin K. Sheares, J.), dated June 30, 2021.  The order, insofar as appealed from, denied that branch of those parties’ cross-motion which was, in effect, for leave to renew their opposition to that branch of the prior motion of Baruch Glauber which was to disqualify Avrom R. Vann from representing G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber in this proceeding, which had been determined in an order of the same court (Martin M. Solomon, J.) dated September 13, 2012.

ORDERED that the order dated June 30, 2021, is affirmed insofar as appealed from, with costs.

In 2012, the petitioner, Baruch Glauber, commenced this proceeding, inter alia, pursuant to CPLR article 75 to compel arbitration of a shareholder dispute and concomitantly moved, among other things, to disqualify Avrom R. Vann from representing the respondents G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber in this proceeding.  In an order dated September 13, 2012 (hereinafter the September 2012 order), the Supreme Court, inter alia, in effect, granted that branch of the petitioner's motion which was to disqualify Vann. The parties thereafter agreed to arbitrate their dispute in a rabbinical court.

In 2020, following the conclusion of the arbitration, the petitioner moved in the Supreme Court to confirm a portion of the arbitration award.  G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber opposed the petitioner's motion and, inter alia, in effect, cross-moved for leave to renew their opposition to the petitioner's prior motion which was to disqualify Vann from representing them in this proceeding.  In an order dated June 30, 2021, the Supreme Court denied that branch of the cross-motion of G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber.  This appeal ensued.

The Supreme Court providently exercised its discretion in denying that branch of the cross-motion of G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber which was, in effect, for leave to renew their opposition to that branch of the petitioner's prior motion which was to disqualify Vann from representing G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber in this proceeding.  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. § [3]).  “[A] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Seegopaul v. MTA Bus Co., 210 A.D.3d 715, 716, 177 N.Y.S.3d 694).  G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber failed to present new facts not offered on the prior motion that would change the prior determination (see CPLR 2221[e][2];  Alnoukari v. Nokari, 218 A.D.3d 527, 528, 191 N.Y.S.3d 174;  Tavor v. Lane Towers Owners, Inc., 197 A.D.3d 584, 586, 153 N.Y.S.3d 52).

To the extent the cross-motion of G & G Quality Clothing, Inc., Ahron Glauber, and Yonah Glauber sought clarification from the Supreme Court as to scope of the court's prior determination in the September 2012 order, this constituted, in essence, an impermissible request for an advisory opinion as to the status of the September 2012 order and has not been considered on the appeal.

DILLON, J.P., BARROS, DOWLING and WAN, JJ., concur.