Opinion
12739N Index No. 652225/16 Case No. 2020-01859
12-29-2020
Gia WANG et al., Plaintiffs–Appellants, v. Patrick B. LAFRIEDA et al., Defendants–Respondents.
Gia Wang, appellant pro se and for Gia Wang LLC, appellant. Bronster LLP, New York (Don Abraham of counsel), for Patrick B. LaFrieda and Patrick L. LaFrieda, respondents. Cuti Hecker Wang LLP, New York (John R. Cuti of counsel), for HADSW LLC, 601 Washington Street Holdings LLC and Charles Dunne, respondents.
Gia Wang, appellant pro se and for Gia Wang LLC, appellant.
Bronster LLP, New York (Don Abraham of counsel), for Patrick B. LaFrieda and Patrick L. LaFrieda, respondents.
Cuti Hecker Wang LLP, New York (John R. Cuti of counsel), for HADSW LLC, 601 Washington Street Holdings LLC and Charles Dunne, respondents.
Webber, J.P., Mazzarelli, Gesmer, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about October 4, 2019, which denied plaintiffs' motion to renew defendants' summary judgment motion pursuant to CPLR 2221(e), unanimously affirmed, with costs.
The IAS court providently exercised its discretion in denying plaintiffs' motion to renew ( Sarmiento v. Ampex Casting Corp., 171 A.D.3d 544, 96 N.Y.S.3d 536 [1st Dept. 2019] ; CPLR 2221[e] ). The new affidavit, submitted by plaintiff Gia Wang's former assistant Victoria Leetsi, was "merely cumulative of other information that had already been presented to the court," and thus insufficient to warrant renewal ( Northern Assur. Co. of Am. v. Holden, 179 A.D.2d569, 579 N.Y.S.2d 876 [1st Dept. 1992] ).
Plaintiffs also failed to provide a "reasonable justification" for their failure to submit the Leetsi affidavit in a timely manner ( CPLR 2221[e][3] ). While plaintiffs made some vague assertions regarding their attempts to contact Leetsi earlier, they have not put forth any specific information regarding their efforts to locate her or to obtain the affidavit. Further, the Leetsi affidavit suggests that she was simply busy with a move, travel, and an injury, and otherwise did not want to get involved with the case (id. ). Such a conclusory claim as to a witness' unavailability is not "a valid excuse for not submitting the additional facts upon the original application" ( Venuti v. Novelli, 179 A.D.2d 477, 479, 578 N.Y.S.2d 179 [1st Dept. 1992] ). Nor have plaintiffs provided an adequate explanation for the year-long delay between when they obtained the Leetsi affidavit (in April of 2018) and when they filed the motion to renew (in April of 2019). Regardless, even giving the Leetsi affidavit full weight, the facts contained within it—which defendants largely contest—would not change the outcome of the case.
We have considered the plaintiffs' remaining contentions and find them unavailing.