Roman Novosiadlyi, appellant, et al., plaintiff, v. Christie James, defendant, Joseph Ippolito, respondent. (2010)

Supreme Court, Appellate Division, Second Department, New York.

Roman Novosiadlyi, appellant, et al., plaintiff, v. Christie James, defendant, Joseph Ippolito, respondent.

2008-07160 (Index No. 34310 /06)

Decided: February 09, 2010

PETER B. SKELOS, J.P. DANIEL D. ANGIOLILLO RUTH C. BALKIN PLUMMER E. LOTT, JJ.

Roman Novosiadlyi, Lindenhurst, N.Y., appellant pro se. Costantino & Costantino, Copiague, N.Y. (Steven A. Costantino of counsel), for respondent. Thereafter, the plaintiffs, proceeding pro se, moved pursuant to CPLR 2005 and 2221 for leave to renew their opposition to Ippolito's motion.   In an order dated July 3, 2008, the Supreme Court denied the plaintiffs' motion for leave to renew, finding that no new facts were offered and that the new arguments offered as new facts would not have changed the prior result.   The plaintiff Roman Novosiadlyi appeals from that order.   We affirm. A motion for leave to renew must be (1) based upon new facts not offered on the prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion (see CPLR 2221[e][2], [3];  Caraballo v Kim, 63 AD3d 976, 978;  Jackson Hgts. Care Ctr., LLC v Bloch, 39 AD3d 477, 480).   Here, the plaintiffs failed to submit new facts sufficient to change the court's prior determination granting Ippolito's summary judgment motion.   Civil Rights Law § 76-a was enacted to provide special protection for defendants in actions arising from the exercise of their rights of public petition and participation by deterring SLAPP actions (see 600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d at 137 n 1;  Singh v Sukhram, 56 AD3d 187, 194).   Where, as here, the defendant established that the action involves the rights of public petition and participation (see Civil Rights Law § 76-a[1][a] ), “damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a[2];  see T.S. Haulers v Kaplan, 295 A.D.2d 595, 598).   In addition, summary judgment must be awarded to the defendant unless the plaintiff demonstrates, in opposition, that the action has “a substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law” (CPLR 3212[h] ).  The plaintiffs' submissions in support of their renewal motion failed to meet this burden or otherwise raise a triable issue of fact as to whether Ippolito knew that his statements were false or that he made them with reckless disregard of whether they were true.   Accordingly, the Supreme Court properly denied the plaintiffs' motion for leave to renew (see T.S. Haulers v Kaplan, 295 A.D.2d at 598).