MEES v. SWEENEY BUILDING (2025)

DECISION & ORDER

In a consolidated action, inter alia, for declaratory and injunctive relief, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated July 1, 2021.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew her prior motion for leave to amend the complaint, which had been denied in an order of the same court dated November 9, 2020.

ORDERED that the order dated July 1, 2021, is affirmed insofar as appealed from, with costs.

In this consolidated action, inter alia, for declaratory and injunctive relief, the plaintiff moved for leave to amend the complaint.  In an order dated November 9, 2020, the Supreme Court denied the motion.  The plaintiff thereafter moved, among other things, for leave to renew her prior motion for leave to amend the complaint.  The defendant opposed the motion.  In an order dated July 1, 2021, the court, inter alia, denied that branch of the motion.  The plaintiff appeals.

A motion for leave to renew “shall be based upon 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” (CPLR 2221[e][2], [3];  see P.J. 37 Food Corp. v. George Doulaveris & Son, Inc., 189 A.D.3d 858, 859, 137 N.Y.S.3d 437).  “While it may be within the court's discretion to grant leave to renew upon facts known to the moving party at the time of the prior motion, 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;  see Sutton v. Syla, 223 A.D.3d 764, 766, 203 N.Y.S.3d 677).  “When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal” (25 Bay Terrace Assoc., L.P. v. Public Serv. Mut. Ins. Co., 194 A.D.3d 668, 674, 148 N.Y.S.3d 484 [internal quotation marks omitted];  see Groman v. Fleyshmakher, 221 A.D.3d 789, 790, 199 N.Y.S.3d 658).

Here, the plaintiff presented additional facts known to her at the time of the prior motion for leave to amend the complaint without demonstrating a reasonable justification for failing to present them on the prior motion (see U.S. Bank N.A. v. Mallouk, 229 A.D.3d 832, 833, 216 N.Y.S.3d 640).  In any event, even assuming the plaintiff did have a reasonable justification for the failure to submit the additional facts on the prior motion, she failed to demonstrate that the additional facts would have changed the prior determination (see Sutton v. Syla, 223 A.D.3d at 766–767, 203 N.Y.S.3d 677;  Seegopaul v. MTA Bus Co., 210 A.D.3d at 716, 177 N.Y.S.3d 694).

Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew her prior motion for leave to amend the complaint.

DUFFY, J.P., BRATHWAITE NELSON, WARHIT and TAYLOR, JJ., concur.