ELDER v. John Palanca, respondent.

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

Issam ELDER, etc., appellant, v. David ELDER, defendant, John Palanca, respondent.

Decided: September 26, 2005

THOMAS A. ADAMS, J.P., GABRIEL M. KRAUSMAN, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Lonnie G. Tishman, New York, N.Y., for appellant. Codispoti & Mancinelli, LLP, New York, N.Y. (Bruno F. Codispoti and Robert M. Steckman of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of a certain parcel of real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated July 3, 2003, as denied that branch of his motion which was for leave to renew his motion to stay enforcement proceedings in a related action entitled Palanca v. Elder, pending in the Supreme Court, Kings County, under Index No. 14619/99, which was determined by order of the same court dated May 17, 2002.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 “ ‘[A] motion for leave to renew must be supported by new or additional facts which, although in existence at the time of [the] prior motion, were not made known to the party seeking renewal, and, consequently, not made known to the court’ ” (Progressive Northeastern Ins. Co. v. Frenkel, 8 A.D.3d 390, 391, 777 N.Y.S.2d 652, quoting Brooklyn Welding Corp. v. Chin, 236 A.D.2d 392, 653 N.Y.S.2d 631).   The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew since it was based on evidence that, with due diligence, could have been discovered earlier (see Kaufman v. Kunis, 14 A.D.3d 542, 787 N.Y.S.2d 667;  Dahlin v. Paladino, 14 A.D.3d 647, 789 N.Y.S.2d 305;  Yarde v. New York City Tr. Auth., 4 A.D.3d 352, 771 N.Y.S.2d 185).

 Moreover, “[t]o the extent that the new materials were matters of public record available before the court issued its decision ․ they could not serve as a proper basis for a motion to renew” (Welch Foods v. Wilson, 247 A.D.2d 830, 831, 669 N.Y.S.2d 109).   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 (see Renna v. Gullo, 19 A.D.3d 472, 797 N.Y.S.2d 115;  Rubinstein v. Goldman, 225 A.D.2d 328, 638 N.Y.S.2d 469;  Hart v. City of New York, 5 A.D.3d 438, 772 N.Y.S.2d 574).   The appellant failed to offer a reasonable justification as to why the proffered evidence was not submitted at the time of the prior motion.   Accordingly, that branch of the motion which was for leave to renew was properly denied.

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