Opinion
15768 Index No. 652897/20 Case No. 2021–04179
04-21-2022
Jonathan BRONSON, Plaintiff–Appellant, v. Steven B. JACOBS, Defendant–Respondent.
Kaufman & Kahn, LLP, New York (Mark S. Kaufman of counsel), for appellant. Steven B. Jacobs, New York, respondent pro se.
Kaufman & Kahn, LLP, New York (Mark S. Kaufman of counsel), for appellant.
Steven B. Jacobs, New York, respondent pro se.
Renwick, J.P., Kapnick, Mazzarelli, Shulman, Pitt, JJ.
Order, Supreme Court, New York County (Kathy J. King, J.), entered on or about October 28, 2021, which, to the extent appealed from, granted defendant's motion for leave to renew plaintiff's motion for summary judgment in lieu of complaint ( CPLR 3213 ) and, upon renewal, vacated the judgment entered December 8, 2020, unanimously reversed, on the law, with costs, the judgment reinstated and the matter remanded to Supreme Court to determine the amount of reasonable attorneys’ fees and costs incurred by plaintiff to enforce the note.
Defendant failed to provide a "reasonable justification" for not submitting the affidavits by Luke Kim and Rebecca Hyde on the prior motion ( CPLR 2221[e][3] ). He claims that he made "repeated requests" of Kim and Hyde for affidavits, but sets forth no specific efforts that he made to procure them (see Orchard Hotel, LLC v. D.A.B. Group, LLC, 114 A.D.3d 508, 510, 982 N.Y.S.2d 4 [1st Dept. 2014] ; Taub v. Art Students League of N.Y., 63 A.D.3d 630, 882 N.Y.S.2d 94 [1st Dept. 2009] ). Further, that the witnesses were unwilling to get involved in the dispute or were traveling or too busy are not valid excuses for defendant's failure to submit affidavits by them on the prior motion ( Wang v. LaFrieda, 189 A.D.3d 732, 732, 134 N.Y.S.3d 721 [1st Dept. 2020], lv dismissed 37 N.Y.3d 1042, 154 N.Y.S.3d 565, 176 N.E.3d 302 [2021] ). To explain their change of mind, the witness say that they felt compelled to submit affidavits to correct misrepresentations that plaintiff had purportedly made on a prior appeal. However, "renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" ( Rubinstein v. Goldman, 225 A.D.2d 328, 328–329, 638 N.Y.S.2d 469 [1st Dept. 1996] [internal quotation marks omitted], lv denied 88 N.Y.2d 815, 651 N.Y.S.2d 16, 673 N.E.2d 1243 [1996] ).
Apart from defendant's failure to offer a reasonable justification for the untimely submissions, the affidavits would not change the prior determination ( CPLR 2221[e][2] ). On the prior motion, defendant submitted a similar affidavit by another witness, and this Court affirmed the motion court's finding that the affidavit was insufficient to raise an issue of fact ( Bronson v. Jacobs, 195 A.D.3d 550, 146 N.Y.S.3d 475 [1st Dept. 2021] ). The new affidavits are merely cumulative (see Wang, 189 A.D.3d at 732, 134 N.Y.S.3d 721 ; Northern Assur. Co. of Am. v. Holden, 179 A.D.2d 569, 569, 579 N.Y.S.2d 876 [1st Dept. 1992] ). In view of the foregoing, we grant plaintiff's request for reasonable attorneys’ fees and costs, to which he is entitled under the promissory note (see LG Funding, LLC v. Johnson & Son Locksmith, Inc., 170 A.D.3d 1153, 1154, 96 N.Y.S.3d 640 [2d Dept. 2019] ).