MEES v. BUITER (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for defamation, the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated March 3, 2022.  The order, insofar as appealed from, denied the plaintiff's motion for leave to renew her opposition to the defendant's prior motion, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint, which had been granted in an order of the same court dated June 1, 2016, or, in the alternative, pursuant to CPLR 5015(a)(3) to vacate the order dated June 1, 2016.

ORDERED that the order dated March 3, 2022, is affirmed insofar as appealed from, with costs.

The facts of this case are more fully set forth in this Court's decision and order on a prior appeal (see Mees v. Buiter, 186 AD3d 1670).  In an order dated June 1, 2016, the Supreme Court, inter alia, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint.  The order dated June 1, 2016, was affirmed insofar as reviewed on appeal (see Mees v. Buiter, 186 AD3d 1670).  The plaintiff moved, among other things, for leave to renew her opposition to that branch of the defendant's prior motion which was to dismiss the amended complaint, and the Supreme Court denied the motion in an order entered February 26, 2018, which was affirmed on appeal (see Mees v. Buiter, 186 AD3d 1673).

Subsequently, the plaintiff again moved for leave to renew her opposition to the defendant's prior motion, or, in the alternative, to vacate the order dated June 1, 2016.  In an order dated March 3, 2022, the Supreme Court, inter alia, denied the plaintiff's 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] ).  Here, the plaintiff failed to demonstrate new facts in support of that branch of her motion which was for leave to renew her opposition to the defendant's prior motion, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint that would have changed the Supreme Court's prior determination (see Doe v. Eliyas, 241 AD3d 1271, 1273;  Aloi v. Tobal, 236 AD3d 618, 620).  The plaintiff also failed to provide a reasonable justification for her failure to present the allegedly new facts supporting renewal in opposition to the defendant's prior motion (see Doe v. Eliyas, 241 AD3d at 1273–1274;  Aloi v. Tobal, 236 AD3d at 620).  Accordingly, the court properly denied that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's prior motion (see CPLR 2221[e][2], [3] ).

CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of “fraud, misrepresentation, or other misconduct of an adverse party.”  “ ‘While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time’ ” (Wells Fargo Bank, N.A. v. Olivo, 241 AD3d 763, 765, quoting Empire State Conglomerates v. Mahbur, 105 AD3d 898, 899).  Here, the plaintiff's delay of approximately four years in seeking relief under CPLR 5015(a)(3) was unreasonable (see Bank of N.Y. Mellon Corp. v Kamal, 241 AD3d 1238;  U.S. Bank N.A. v. Livingston, 199 AD3d 964;  Shah v N.Y. State Off. of Mental Health, 199 AD3d 955).  Moreover, the plaintiff also failed to establish the existence of fraud, misrepresentation, or other misconduct by the defendant sufficient to entitle the plaintiff to vacatur of the order dated June 1, 2016 (see Sieger v. Sieger, 51 AD3d 1004, 1006).  Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to vacate the order dated June 1, 2016.

The plaintiff's remaining contention is academic in light of the foregoing.

Appeal from an order of the Supreme Court, Kings County, dated March 3, 2022.  Motion by the appellant, inter alia, to strike stated portions of the respondent's brief on the ground that they refer to matter dehors the record.  By decision and order on motion of this Court dated March 7, 2025, that branch of the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which is to strike stated portions of the respondent's brief is denied.

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.