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Facts Learned From Deposition Insufficient to Support Motion to Renew

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  • Posted on: Jun 6 2022

By: Jeffrey M. Haber

It goes without saying that lawyers do not win every motion they make. When that happens, a lawyer can appeal the order or avail himself/herself of the two options afforded by CPLR § 2221: he/she can make: (1) a motion to reargue, or (2) a motion to renew.1 In either case, the lawyer is asking the judge who ruled against him or her to change the outcome of the original motion. 

A motion to reargue is addressed to the discretion of the court. It must be made within thirty (30) days of service of a copy of the order and written notice of its entry.2 

A motion to reargue is “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.”3 It must be based on the set of papers on which the judge relied to make his/her original decision.4 The motion cannot include any matters of fact or principles of law not offered or argued on the prior motion.5 It should not “serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.”6 Therefore, the movant cannot use the motion for reargument as mechanism to “present arguments different from those originally presented.”7 

A motion to renew is similar to a motion to reargue in that the motion is addressed to the discretion of the court and asks the court to change the outcome of the original decision.8 “A motion for leave to renew must be based upon new facts that were unavailable at the time of the original motion.”9 When a motion to renew is made based on facts not previously offered, the movant must justify his/her failure to offer the facts in the original motion. Although there is no deadline for a motion to renew, it is good practice to make the motion within 30 days of service of the original order and written notice of its entry.

Against this background, we consider 2006905 Ontario Inc. v. Goodrich Aerospace Can., Ltd., 2022 N.Y. Slip Op. 03613 (4th Dept. June 3, 2022) (here).

Plaintiff commenced the action seeking damages for, inter alia, fraud allegedly arising from failed negotiations regarding the renewal of a contract to supply parts. On a prior appeal, the Appellate Division, Fourth Department affirmed an order denying that part of plaintiff’s motion, which plaintiff made before taking depositions, seeking “partial summary judgment on certain elements of its fraud cause of action, i.e., the elements requiring a material misrepresentation of fact, knowledge of its falsity, and an intent to induce reliance.”11 After depositions and other discovery occurred, plaintiff moved for leave to renew its prior motion insofar as the prior motion sought partial summary judgment. The motion court denied the motion. Plaintiff appealed.

The Fourth Department affirmed.

In a pithy decision, the Court held that plaintiff failed to present evidence that could not be obtained with due diligence in support of the earlier motion. The submission of the deposition transcripts, said the Court, was not enough. Plaintiff could have obtained the information prior to moving for summary judgment: “‘nothing prevented [plaintiff] from conducting discovery, including depositions, prior to moving for [partial] summary judgment.’”12 As such, plaintiff failed to meet its burden “‘of proving that the new evidence [it] sought to present could not have been discovered earlier with due diligence and would have led to a different result.’”13 


“[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.’”14 In 2006905 Ontario, the only justification proffered by plaintiff for failing to present the claimed newly discovered facts in support of the prior motion was that depositions had not yet been conducted.15 But, as the Court explained, those facts could have been obtained by taking the depositions before filing the motion for partial summary judgment. By not availing itself of the opportunity to take testimonial discovery, the Court found that plaintiff had not met its burden.16

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.


  1. Sometimes, where appropriate, a lawyer will make a motion for both forms of relief.
  2. CPLR § 2221(d)(3).
  3. CPLR § 2221(d)(2).
  4. Phillips v. Vill. of Oriskany, 57 A.D.2d 110, 113 (4th Dept. 1977).
  5. Amato v. Lord & Taylor, Inc., 10 A.D.3d 374, 375 (2d Dept. 2004); Levi v. Utica First Ins. Co., 12 A.D.3d 256, 258 (1st Dept. 2004); Frisenda v. X Large Enterprises, Inc., 280 A.D.2d 514, 515 (2d Dept. 2001).
  6. Foley v. Roche, 68 A.D.2d 558, 567 (1st Dept. 1979).
  7. Gellert & Rodner v. Gem Community Mgt., Inc., 20 A.D.3d 388 (2d Dept. 2005).
  8. CPLR § 2221(e)(2).
  9. Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482 (2003).
  10.  CPLR § 2221(e)(3).
  11. 2006905 Ontario Inc. v. Goodrich Aerospace Can., Ltd., 197 A.D.3d 1008, 1008-1009 (4th Dept. 2021).
  12. Slip Op. at *1 (quoting, Centerline/Fleet Hous. Partnership, L.P.-Series B v. Hopkins Ct. Apts., LLC, 176 A.D.3d 1596, 1598 (4th Dept. 2019)).
  13. Id. (quoting Centerline/Fleet Hous. Partnership, 176 A.D.3d at 1598).
  14. Id. (quoting, Welch Foods v. Wilson, 247 A.D.2d 830, 831 (4th Dept. 1998) (internal quotation marks omitted)); see also Heltz v. Barratt, 115 A.D.3d 1298, 1300 (4th Dept. 2014), aff’d, 24 N.Y.3d 1185 (2014).
  15. Slip Op. at *1.
  16. Schumann v. City of New York, 242 A.D.2d 616 (2d Dept. 1997).
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