DESTINO v. LLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for violations of Banking Law § 6–l, the defendants Silver Heights Development, LLC, and Silver Heights Capital II, LLC, appeal from an order of the Supreme Court, Suffolk County (Linda J. Kevins, J.), dated February 22, 2023.  The order, insofar as appealed from, denied, as academic, that branch of those defendants’ motion which was for leave to renew that branch of their prior motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs, which had been denied in an order of the same court dated March 7, 2022.

ORDERED that the order dated February 22, 2023, is modified, on the law, by deleting the provision thereof denying, as academic, that branch of the motion of the defendants Silver Heights Development, LLC, and Silver Heights Capital II, LLC, which was for leave to renew that branch of their prior motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs, and substituting therefor a provision denying that branch of their motion on the merits;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In July 2020, the plaintiffs commenced this action against the defendants Silver Heights Development, LLC, and Silver Heights Capital II, LLC (hereinafter the defendants), among others, inter alia, to recover damages for violations of Banking Law § 6–1.  In August 2021, the defendants moved, among other things, pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs.  By order dated March 7, 2022, the Supreme Court, inter alia, denied that branch of the defendants’ motion.  Later that month, the defendants moved, among other things, for leave to renew that branch of their prior motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs.  In January 2023, the plaintiffs moved pursuant to CPLR 3217(b) for leave to discontinue the action with prejudice.  By order dated February 22, 2023, the Supreme Court granted the plaintiff's motion to the extent of directing discontinuance of the action without prejudice and denied, as academic, that branch of the defendants’ motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs.  The defendants appeal from so much of the order as denied, as academic, that branch of their motion.

Initially, the defendants correctly contend that the Supreme Court, upon directing discontinuance of the action pursuant to CPLR 3217(b), improperly denied, as academic, that branch of their motion which was for leave to renew that branch of their prior motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs.  The discontinuance of the action did not render the defendants’ request for sanctions against the plaintiffs academic (see 13 E. 124 LLC v. J & M Realty Servs. Corp., 222 A.D.3d 446, 449, 202 N.Y.S.3d 31;  Wells Fargo Bank, N.A. v. Bagley, 104 A.D.3d 938, 938–939, 960 N.Y.S.2d 904).  In the interest of judicial economy, we deem it appropriate to address the defendants’ motion on the merits, rather than to remit the matter to the Supreme Court, Suffolk County, to do so (see Wells Fargo Bank, N.A. v. Rindenow, 186 A.D.3d 782, 783, 127 N.Y.S.3d 343;  Gesuale v. Campanelli & Assoc., P.C., 126 A.D.3d 936, 936–937, 7 N.Y.S.3d 192).

“A motion for leave to renew shall be based, inter alia, on new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion” (Viehl v. Doran Group, 118 A.D.3d 695, 696, 986 N.Y.S.2d 847;  see CPLR 2221[e]).  Even assuming that the defendants set forth new facts not offered on the prior motion and provided the requisite reasonable justification (see Wells Fargo Bank, N.A. v. Malek, 199 A.D.3d 1040, 157 N.Y.S.3d 99;  Kranenberg v. TKRS Pub, Inc., 99 A.D.3d 769, 770, 952 N.Y.S.2d 219), the defendants failed to establish that the plaintiffs engaged in frivolous conduct by commencing and maintaining this action against them (see Matter of Fanizzi v. Planning Bd. of Patterson, 146 A.D.3d 98, 107–108, 44 N.Y.S.3d 74).  Therefore, the defendants’ submissions in support of that branch of their motion which was for leave to renew that branch of their prior motion which was pursuant to 22 NYCRR 130–1.1 to impose sanctions upon the plaintiffs would not have changed the Supreme Court's determination denying the aforementioned branch of their prior motion (see Kranenberg v. TKRS Pub, Inc., 99 A.D.3d at 770, 952 N.Y.S.2d 219).

The defendants’ remaining contention need not be reached in light of our determination.

CONNOLLY, J.P., FORD, VOUTSINAS and VENTURA, JJ., concur.