Sometimes One Bite at the Apple is All You Get
Print Article- Posted on: Jun 23 2023
Today’s Blog involves motions to renew and reargue and successive motions for summary judgment.
When a motion is denied, a movant has several options. One can accept the loss and move on. An appeal can also be pursued. Additional options are also available under CPLR 2221, which permits a movant to move for renewal or reargument.
A motion to renew is “properly made to the motion court (CPLR 2221) to draw its attention to material facts which, although extant at the time of the original motion, were not then known to the party seeking renewal and, consequently, were not placed before the court.” Matter of Beiny, 132 A.D.2d 190 (1st Dep’t 1987) (citation omitted); see also Boreanaz v. Facer-Kreidler, 2 A.D.3d 1481, 1482 (4th Dep’t 2003). Renewal is “granted sparingly and is not a second chance freely given to parties who have not exercised due diligence in making their first presentation.” Acevedo v. Nurmamatov, 206 A.D.3d 488 (1st Dep’t 2022) (citation and internal quotation marks omitted). Accordingly, renewal motions should be denied “unless the moving party offers a reasonable excuse as to why the additional facts were not submitted on the original application.” Cole-Hatchard v. Grand Union, 270 A.D.2d 447 (2nd Dep’t 2000) (citation and internal quotation marks omitted); CPLR 2221(e)(3).
Reargument motions, on the other hand, are not based on new evidence previously unavailable, but are made when it is believed that the underlying decision was rendered because the motion court “misapprehended … the relevant facts that were before it or misapplied … controlling principal of law.” Boboyev v. Gomez, 304 A.D.2d 600, 601 (2nd Dep’t 2003) (citation omitted). The purpose of a reargument motion is “not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.” Pro Brokerage, Inc. v. The Home Insurance Company, 99 A.D.2d 971 (1st Dep’t 1984) (citation and internal quotation marks omitted). Nor is reargument a vehicle by which a party may “advance arguments different from those tendered on the original application [because a reargument motion] may not be employed as a device for the unsuccessful party to assume a different position inconsistent with that taken on the original motion.” Foley v. Roche, 68 A.D.2d 558, 568 (1st Dep’t 1979); see also Gellert & Rodner v. Gem Community Mgt., Inc., 20 A.D.3d 388 (2nd Dep’t 2005) (citation omitted).
When a motion for summary judgment is denied, the movant can move for renewal or reargument pursuant to CPLR 2221 if the applicable standards are met. Courts, however, frown upon the making of successive motions for summary judgment. It is recognized that “[s]uccessive motions for summary judgment should not be entertained in the absence of good cause, such as a showing of newly discovered evidence.” P.J. 37 Food Corp. v. George Doulaveris & Son, Inc., 189 A.D.3d 858, 859 (2nd Dep’t 2020) (citation and internal quotation marks omitted). Nor should such motions be made “based upon facts or arguments which could have been submitted on the original motion for summary judgment.” Hillrich Holding Corp. v. BMSL Management, LLC, 175 A.D.3d 474, 475 (2nd Dep’t 2019) (citations and internal quotation marks omitted). Indeed, the previously unsubmitted evidence “must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means.” Id. (citations and internal quotation marks omitted).
A “narrow exception” to the prohibition against successive summary judgment motions permits such motions to be entertained “when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts.” Aurora Loan Services, LLC v. Yogev, 194 A.D.3d 996, 997 (2nd Dep’t 2021) (citations and internal quotation marks omitted).
All of these issues were addressed by the June 21, 2023, decision of the Appellate Division, Second Department, in Wells Fargo Bank, N.A. v. Gittens, a mortgage foreclosure action. Lender in Gittens, commenced a foreclosure action in which borrower interposed an answer asserting numerous affirmative defenses, including lender’s failure to comply with the notice provisions of the loan documents and failure to comply with the requirements of RPAPL 1304. [Eds. Note: this Blog has frequently written about RPAPL 1304. See [here] and the blog articles hyperlinked therein.]. The motion court denied lender’s summary judgment motion. Thereafter, lender “again made a motion …., certain branches of which were denominated as ones for summary judgment on the complaint insofar as asserted against the [borrowers] and for an order of reference.” The motion court granted lender’s motion and borrower appealed. The Second Department reversed.
The Second Department noted that “[a]lthough certain branches of the second motion were denominated as ones for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, those branches were, in actuality, one for leave to renew the [lender]’s prior motion for summary judgment on the complaint insofar as asserted against the [borrowers] and for an order of reference” and that the “new evidence supporting the second motion could have been submitted by the [lender] in support of its prior motion.” The Second Department found that the motion, to the extent that it was to renew, should have been denied because the lender “failed to provide any justification for its failure to present the new evidence supporting the second motion as part of its prior motion.”
Even if considered a successive motion for summary, the Second Department found that lender’s motion should have been denied because such motions “should not be entertained in the absence of good cause, such as a showing of newly discovered evidence.” (Citation and internal quotation marks omitted.)
In determining that lender’s motion failed to fit within the previously discussed exception to the prohibition against successive summary judgment motions, the Court stated:
The second motion also did not fit within the “narrow exception” to the successive summary judgment rule. This narrow exception permits entertainment of a successive motion when it is substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts. Here, entertaining a second summary judgment motion involved review of multiple disputed issues, including whether the [lender] established the [borrower]s’ default, the [lender]’s compliance with the contractual condition precedent, and the [lender]’s compliance with RPAPL 1304. Thus, rather than eliminating a burden on the Supreme Court, the court’s consideration of the second motion actually imposed an additional burden on the court. Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance.
Jonathan H. Freiberger 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.
