Opinion
2012-09-19
Steve ROSE, appellant, v. Julie H. LEVINE, et al., defendants, Robert Levine, respondent.
Gribetz & Loewenberg, PLLC, New City, N.Y. (Kenneth Gribetz and Deborah Wolikow Loewenberg of counsel), for appellant. Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondent.
Gribetz & Loewenberg, PLLC, New City, N.Y. (Kenneth Gribetz and Deborah Wolikow Loewenberg of counsel), for appellant. Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondent.
In an action to foreclose three mortgages, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated October 26, 2010, which denied his motion (1) pursuant to CPLR 2221(e) for leave to renew his opposition to a prior motion of the defendant Robert Levine, inter alia, to hold him in civil or criminal contempt for violating a temporary restraining order set forth in an order of the same court dated January 19, 2006, which had been granted in an order of the same court dated March 13, 2006, and for leave to renew his opposition to a prior motion of the defendant Robert Levine, inter alia, to hold him in civil contempt for violating a preliminary injunction set forth in the order dated March 13, 2006, which had been granted in an order of the same court dated October 19, 2009, and (2) pursuant to CPLR 5015(a)(2), CPL 440.10(1)(g) and (h), and the common law writ of coram nobis, to vacate the orders dated March 13, 2006, and October 19, 2009, and to vacate a prior order of the same court dated February 3, 2010, imposing fines and directing his incarceration until he purges his civil contempt by paying the associated fines.
ORDERED that the order dated October 26, 2010, is affirmed, with costs.
The plaintiff's contentions with respect to his allegations of ineffective assistance of counsel during the subject contempt proceedings, which formed the basis of his request for coram nobis relief, were previously raised by him and determined to be without merit on a prior appeal ( see Rose v. Levine, 84 A.D.3d 1206, 1208, 923 N.Y.S.2d 689).
“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” ( Elder v. Elder, 21 A.D.3d 1055, 1055, 802 N.Y.S.2d 457;see Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146). A motion for leave to renew must be based upon new facts, not offered on the original application, “that would change the prior determination” (CPLR 2221[e][2] ), and the party seeking renewal must have a “reasonable justification” for the failure to present such facts on the original motion (CPLR 2221[e][3]; see Matter of Korman v. Bellmore Pub. Schools, 62 A.D.3d 882, 884, 879 N.Y.S.2d 194). What constitutes a “reasonable justification” is within the Supreme Court's discretion ( Heaven v. McGowan, 40 A.D.3d 583, 586, 835 N.Y.S.2d 641;see Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121). Here, the Supreme Court's denial of that branch of the plaintiff's motion which was for leave to renew his opposition to the contempt motions of the defendant Robert Levine, was a provident exercise of discretion, since the plaintiff failed to offer a reasonable justification as to why the subject “new” evidence was not submitted at the time of the prior motions and, in any event, the subject evidence would not have changed the prior determinations ( see Zito v. Jastremski, 84 A.D.3d 1069, 1071, 925 N.Y.S.2d 91;Ryan v. Richmond County Yacht Club, Inc., 83 A.D.3d 1036, 1037, 922 N.Y.S.2d 155).
The plaintiff's remaining contentions are without merit.