WDF INC v. PEGNO CONSTRUCTION CORP (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered May 5, 2022.  The order denied the plaintiff's motion for leave to renew and reargue its prior cross-motion to strike the note of issue and its prior motion to transfer the action to an IAS part for the completion of discovery, to strike the answer for failure to comply with discovery demands or, in the alternative, to compel the disclosure of certain documents and the production of the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions, which had been denied in an order of the same court dated March 8, 2021.

ORDERED that the appeal from so much of the order entered May 5, 2022, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the appeal from so much of the order entered May 5, 2022, as denied that branch of the plaintiff's motion which was for leave to renew that branch of the plaintiff's prior motion which was to compel the production of the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions is dismissed, as that portion of the order is not appealable as of right (see Martino v. Jae Ho Lee, 218 A.D.3d 766, 768, 193 N.Y.S.3d 247;  Donato v. Nutovits, 149 A.D.3d 1037, 1038, 52 N.Y.S.3d 488;  Taylor v. New York City Hous. Auth., 83 A.D.3d 929, 929, 920 N.Y.S.2d 706), and we decline to grant leave to appeal on the Court's own motion;  and it is further,

ORDERED that the order entered May 5, 2022, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The facts of this case are more fully set forth in this Court's decision and order on a related appeal (see WDF, Inc. v A.J. Pegno Construction Corp./Tully Construction Co., Inc., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2026 WL 1884121 [Appellate Division Docket No. 2022–03700;  decided herewith] ).  The plaintiff cross-moved to strike the note of issue and separately moved to transfer the action to an IAS part for the completion of discovery, to strike the answer for failure to comply with discovery demands or, in the alternative, to compel the disclosure of certain documents and the production of the defendant Peter Tully and nonparty Thomas Olesczuk for further depositions to answer certain questions.  In an order dated March 8, 2021, the Supreme Court, among other things, denied the cross-motion and the motion on the ground that the plaintiff failed to submit sufficient proof of its good-faith efforts to resolve the discovery dispute as required by 22 NYCRR 202.7.  Thereafter, the plaintiff moved for leave to renew and reargue its prior cross-motion and its prior motion.  In an order entered May 5, 2022, the Supreme Court denied the motion.  The plaintiff appeals.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew its prior cross-motion and those branches of its prior motion which were to transfer the action to an IAS part for the completion of discovery, to strike the answer for failure to comply with discovery demands or, in the alternative, to compel the disclosure of certain documents.  “A motion for leave to renew must be based on new facts not offered on the prior motion that would change the prior determination and must contain reasonable justification for the failure to present such facts on the prior motion” (C Castle Group Corp. v. Herzfeld & Rubin, P.C., 237 A.D.3d 888, 889, 231 N.Y.S.3d 844 [internal quotation marks omitted] ).  “A discovery motion must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion” (Steinberg v. Bais Yaakov Council, Inc., 237 A.D.3d 1131, 1132, 233 N.Y.S.3d 603 [internal quotation marks omitted];  see 22 NYCRR 202.7, 202.20–f).  Here, the plaintiff failed to offer any new facts that would have changed the court's prior determination that the plaintiff failed to demonstrate that it complied with the requirements of 22 NYCRR 202.7.

CHAMBERS, J.P., DOWLING, WAN and GOLDBERG VELAZQUEZ, JJ., concur.