490-492 Amsterdam Avenue Housing Development Fund Corp. v. O'Neal , 144 A.D.3d 585 ( 2016 )

490-492 Amsterdam Ave. Hous. Dev. Fund Corp. v O'Neal (2016 NY Slip Op 07990)

490-492 Amsterdam Ave. Hous. Dev. Fund Corp. v O'Neal

2016 NY Slip Op 07990

Decided on November 29, 2016

Appellate Division, First 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 November 29, 2016
Mazzarelli, J.P., Renwick, Richter, Manzanet-Daniels, Feinman, JJ.

2298 156161/12

[*1]490-492 Amsterdam Avenue Housing Development Fund Corporation, Plaintiff-Respondent,

v

Hector P. O'Neal, Defendant-Appellant.

Jose Luis Torres, White Plains, for appellant.

Barry Mallin & Associates, P.C., New York (Matthew Maline of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered April 29, 2016, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion to renew defendant's motion to dismiss and, upon renewal, denied the motion to dismiss, unanimously affirmed, with costs.

Even if the "new facts not offered on the prior motion" were available to plaintiff at the time (CPLR 2221[e][2], [3]), the court exercised its discretion providently in granting plaintiff's motion for renewal in the interest of justice (see Cruz v Bronx Lebanon Hosp. Ctr., 73 AD3d 597, 598 [1st Dept 2010]). Plaintiff demonstrated that it was unaware of the January 2014 90-day notice, since it had discharged its former counsel in June 2013, it was not informed by former counsel of his receipt of that notice, and, despite several requests, was unable to obtain its case file from former counsel. Moreover, plaintiff demonstrated a meritorious cause of action (see Bustamante v Green Door Realty Corp., 69 AD3d 521 [1st Dept 2010]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 29, 2016

CLERK