Opinion
917 CA 19–01745
12-23-2020
HOME INSULATION & SUPPLY, INC., Plaintiff-Respondent, v. ISKALO 5000 MAIN, LLC, Defendant-Appellant.
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (JAMES W. GRESENS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. LAVIN, P.C., BUFFALO (JOHN J. LAVIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (JAMES W. GRESENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. LAVIN, P.C., BUFFALO (JOHN J. LAVIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue is unanimously dismissed and the order is affirmed without costs.
Memorandum: Defendant appeals from an order denying its motion for leave to reargue and renew that part of its motion for summary judgment seeking attorney's fees. No appeal lies from an order denying a motion seeking leave to reargue, and thus that part of defendant's appeal must be dismissed (see Matter of Rochester Genesee Regional Transp. Auth. v. Stensrud , 162 A.D.3d 1495, 1495, 79 N.Y.S.3d 773 [4th Dept. 2018], lv dismissed 35 N.Y.3d 950, 124 N.Y.S.3d 617, 147 N.E.3d 1155 [2020] ; Empire Ins. Co. v. Food City , 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ). Supreme Court properly denied that part of defendant's motion seeking leave to renew. "It is well settled that a motion for leave to renew must 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’ " ( Heltz v. Barratt , 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160 [4th Dept. 2014], affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014] ; see CPLR 2221 [e] [2], [3] ; Blazynski v. A. Gareleck & Sons, Inc. , 48 A.D.3d 1168, 1170, 852 N.Y.S.2d 500 [4th Dept. 2008], lv denied 11 N.Y.3d 825, 868 N.Y.S.2d 593, 897 N.E.2d 1077 [2008] ). Here, the court denied that part of the motion for summary judgment seeking attorney's fees based on defendant's failure to provide documentation supporting an award of fees. Although defendant submitted itemized time records and billing information in support of its motion for leave to renew, defendant failed to provide a reasonable justification for its failure to submit those records in support of its request for attorney's fees in the motion for summary judgment (see Heltz , 115 A.D.3d at 1299-1300, 983 N.Y.S.2d 160 ; Wright v. State of New York , 156 A.D.3d 1413, 1414-1415, 65 N.Y.S.3d 874 [4th Dept. 2017], appeal dismissed 31 N.Y.3d 1001, 74 N.Y.S.3d 162, 97 N.E.3d 710 [2018] ). "[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’ " ( Heltz , 115 A.D.3d at 1300, 983 N.Y.S.2d 160 ).