CARROWAY LUXURY HOMES LLC v. INTEGRA SUPPLY CORPORATION

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

CARROWAY LUXURY HOMES, LLC, Plaintiff-Respondent, v. INTEGRA SUPPLY CORPORATION, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Frank A. Sarat, Homer, for Defendant-Appellant. Greene, Hershdorfer & Sharpe, Syracuse (Sherry R. Bruce of Counsel), for Plaintiff-Respondent.

Defendant appeals from an order granting in part the cross motion of plaintiff for leave to renew its motion seeking to strike defendant's amended answer and seeking partial summary judgment on liability and sanctions based on defendant's alleged intentional spoliation of evidence and, upon renewal, granting the motion in part.   On a prior appeal, we concluded that Supreme Court erred in granting those parts of the motion for partial summary judgment on liability and to strike the amended answer, with the exception of the first affirmative defense (Carroway Luxury Homes, LLC v. Integra Supply Corp., 52 A.D.3d 1187, 859 N.Y.S.2d 834).   We now conclude that the court should have denied the cross motion for leave to renew in its entirety.   Although “a court of original jurisdiction may entertain a motion to renew ․ on the ground of newly discovered evidence even after an [appeal has been taken from] the original order” (Levitt v. County of Suffolk, 166 A.D.2d 421, 422, 560 N.Y.S.2d 487, lv. dismissed 77 N.Y.2d 834, 566 N.Y.S.2d 588, 567 N.E.2d 982), here, plaintiff failed, inter alia, to support its cross motion with “new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2];  see Blazynski v. A. Gareleck & Sons, Inc., 48 A.D.3d 1168, 1170, 852 N.Y.S.2d 500, lv. denied 11 N.Y.3d 825, 868 N.Y.S.2d 593, 897 N.E.2d 1077;  Conley v. Central Sq. School Dist., 255 A.D.2d 981, 679 N.Y.S.2d 872).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, plaintiff's cross motion and motion are denied in their entirety and the amended answer is reinstated in its entirety.

MEMORANDUM: