Cullin v. Lynch , 148 A.D.3d 670 ( 2017 )

Cullin v Lynch (2017 NY Slip Op 01532)

Cullin v Lynch

2017 NY Slip Op 01532

Decided on March 1, 2017

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 March 1, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.

2015-01473
(Index No. 24619/11)

[*1]Karen Cullin, appellant,

v

Keith Lynch, et al., respondents.

Paul W. Haug, Medford, NY, for appellant.

The Law Offices of John J. O'Grady, PLLC, Garden City, NY, for respondent Keith Lynch.

Perez Varvaro & Cariello, Uniondale, NY (Denise A. Cariello of counsel), for respondent Gary Lynch.

DECISION & ORDER

In an action to recover damages for slander and libel, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Asher, J.), entered December 1, 2014, which denied her motion for leave to renew her opposition to those branches of the defendants' separate motions pursuant to CPLR 3211(a) which were to dismiss the cause of action alleging libel insofar as asserted against each of them, which were granted in a prior order of the same court dated April 5, 2012.

ORDERED that the order entered December 1, 2014, is affirmed, with one bill of costs.

For a movant to prevail on a motion for leave to renew, the motion "must be (1) based upon new facts not offered on the prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion" (Cioffi v S.M. Foods, Inc., 142 AD3d 526, 529, quoting Matter of Nelson v Allstate Ins. Co., 73 AD3d 929, 929; see CPLR 2221[e][2]; Central Mtge. Co. v Resheff, 136 AD3d 962, 963; Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 585-586; Jovanovic v Jovanovic, 96 AD3d 1019, 1020). Here, the Supreme Court did not improvidently exercise its discretion in denying the plaintiff's motion for leave to renew, inasmuch as the newly submitted evidence would not have changed the prior determination (see Weisz v Weisz, 123 AD3d 917, 919; cf. Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 394).

BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court