Dash Windows of L.I., Inc. v Bivona (2023 NY Slip Op 02645)
Dash Windows of L.I., Inc. v Bivona
2023 NY Slip Op 02645
Decided on May 17, 2023
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 17, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
JOSEPH A. ZAYAS
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2021-05002 (Index No. 613033/19)
[*1]Dash Windows of L.I., Inc., appellant-respondent,
v
Ann Elizabeth Bivona, respondent-appellant.
Silverberg P.C., Central Islip, NY (Karl Silverberg of counsel), for appellant-respondent.
Sherri L. Kaplan, Commack, NY, for respondent-appellant.
DECISION & ORDER
In an action to recover damages for conversion and unjust enrichment, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated June 23, 2021. The order, insofar as appealed from, denied the plaintiff's motion for leave to renew its opposition to that branch of the defendant's prior motion which was pursuant to CPLR 3211(a)(7) to dismiss the demand for punitive damages, which had been granted in an order of the same court dated October 6, 2020.
ORDERED that the cross-appeal is dismissed as abandoned; and it is further,
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
The plaintiff commenced this action to recover damages for conversion and unjust enrichment. The complaint included a demand for punitive damages. The defendant moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the demand for punitive damages. In an order dated October 6, 2020, the Supreme Court, inter alia, granted that branch of the motion. The plaintiff moved for leave to renew its opposition to that branch of the defendant's motion. In an order dated June 23, 2021, the court, among other things, denied the plaintiff's motion for leave to renew. The plaintiff appeals.
A motion for leave to renew must be based upon new facts not offered on the prior motion which would change the prior determination, and must contain a reasonable justification for the failure to present such facts on the prior motion (see id. § 2221[e][2], [3]; Bank of N.Y. Mellon v Lewis, 200 AD3d 969, 970). Here, the plaintiff failed to offer a reasonable justification for the failure to present the new facts in its original opposition to the defendant's motion (see Waterfall Victoria Grantor Trust II, Series G v Philantrope, 211 AD3d 986, 988; Leader v Steinway, Inc., 186 AD3d 1211, 1213). Moreover, the plaintiff failed to demonstrate that the proffered new facts would have changed the prior determination (see Matter of Marum v Graffeo, 212 AD3d 622, 623; Leader v Steinway, Inc., 186 AD3d at 1213).
Accordingly, the Supreme Court properly denied the plaintiff's motion for leave to [*2]renew its opposition to that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the demand for punitive damages.
BRATHWAITE NELSON, J.P., ZAYAS, FORD and VOUTSINAS, JJ., concur.
2021-05002 DECISION & ORDER ON MOTION
Dash Windows of L.I., Inc., appellant-respondent,
v Ann Elizabeth Bivona, respondent-appellant.
(Index No. 613033/19)
Appeal and cross-appeal from an order of the Supreme Court, Suffolk County, dated June 23, 2021. Motion by the respondent-appellant to strike stated portions of the appellant-respondent's brief and record on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated September 28, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal and cross-appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal and cross-appeal, it is
ORDERED that the motion is denied.
BRATHWAITE NELSON, J.P., ZAYAS, FORD and VOUTSINAS, JJ., concur. ENTER: Maria T. Fasulo
Clerk of the Court
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