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Carroway Luxury Homes, LLC v. Integra Supply Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

CARROWAY LUXURY HOMES, LLC, PLAINTIFF-RESPONDENT,
v.
INTEGRA SUPPLY CORPORATION, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, J.), entered November 8, 2007. The order, insofar as appealed from, granted in part the cross motion of plaintiff for leave to renew its motion seeking to strike the amended answer and seeking partial summary judgment on liability and sanctions and, upon renewal, granted the motion in part.

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.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ.

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, plaintiff's cross motion and motion are denied in their entirety and the amended answer is reinstated in its entirety.

Memorandum

Defendant appeals from an order granting in part the cross motion of plaintiff for leave to renew its motion seeking to strike defendant's amended answer and seeking partial summary judgment on liability and sanctions based on defendant's alleged intentional spoliation of evidenceand, upon renewal, granting the motion in part. On a prior appeal, we concluded that Supreme Court erred in granting those parts of the motion for partial summary judgment on liability and to strike the amended answer, with the exception of the first affirmative defense (Carroway Luxury Homes, LLC v Integra Supply Corp., 52 AD3d 1187). We now conclude that the court should have denied the cross motion for leave to renew in its entirety. Although "a court of original jurisdiction may entertain a motion to renew . . . on the ground of newly discovered evidence even after an [appeal has been taken from] the original order" (Levitt v County of Suffolk, 166 AD2d 421, 422, lv dismissed 77 NY2d 834), here, plaintiff failed, inter alia, to support its cross motion with "new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]; see Blazynski v A. Gareleck & Sons, Inc., 48 AD3d 1168, 1170, lv denied ___ NY3d ___ [Oct. 28, 2008]; Conley v Central Sq. School Dist., 255 AD2d 981).

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