Summary
This Appellate Division, Second Department decision reviews a Supreme Court order that granted plaintiffs' motion for leave to renew and reargue their opposition to a motion to dismiss a legal malpractice action for failure to timely serve a complaint. The appellate court reversed the lower court's order, holding that the plaintiffs failed to provide new facts or reasonable justification for renewal, and did not demonstrate overlooked matters required for reargument. Consequently, the court denied the plaintiffs' motion and reinstated the prior order dismissing the action for untimely service.
Topics
Practice areas
Questions Presented
- Whether the trial court abused its discretion in granting the plaintiffs' motion for leave to renew the opposition to the defendants' motion to dismiss for failure to timely serve a complaint.
- Whether the trial court abused its discretion in granting the plaintiffs' motion for leave to reargue the underlying motion.
Holdings
- The trial court erred; a motion for leave to renew must be based on new facts not offered on the prior motion and must include a reasonable justification for the failure to present those facts. The plaintiffs offered no new facts and provided no justification, so the motion was denied.
- The trial court erred; a motion for leave to reargue must be based on matters of fact or law overlooked or misapprehended by the court, which was not shown here.
Key quotations
“A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination (CPLR 2221[e][2]).” (at 1)
“[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.” (at 1)
Factual background
Plaintiffs commenced a legal‑malpractice action in March 2020 but failed to serve a complaint within the statutory time. Defendants moved to dismiss for untimely service, and the trial court granted that motion and denied the plaintiffs' cross‑motion to file a late complaint. Plaintiffs later sought leave to renew their opposition and to reargue, asserting new facts.
Procedural history
The plaintiffs filed a legal malpractice action in March 2020. The defendants moved to dismiss for failure to timely serve a complaint (CPLR 3012(b)). The trial court granted the dismissal and denied the plaintiffs' cross‑motion for leave to file a late complaint (CPLR 3012(d)). The plaintiffs later moved for leave to renew and reargue; the trial court granted that motion, vacating its prior order. The defendants appealed.
Remand instructions
Reinstate the order dated July 16, 2021.