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Aha Sales, Inc. v. Creative Bath Products, Inc.

Supreme Court of New York, Second Department

October 30, 2013

Aha Sales, Inc., respondent,
v.
Creative Bath Products, Inc., appellant, et al., defendant. Index No. 13487/06

Menaker & Herrmann, LLP, New York, N.Y. (Richard G. Menaker of counsel), and Lazer Aptheker Rosella & Yedid, P.C., Melville, N.Y. (Todd M. Gardella of counsel), for appellant (one brief filed).

Robert L. Folks & Associates, LLP, Melville, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages in quantum meruit for services rendered and for unjust enrichment, the defendant Creative Bath Products, Inc., appeals, as limited by its brief, from so much an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 7, 2012, as denied that branch of its motion which was to renew its opposition to the plaintiff's prior motion to preclude it from, inter alia, presenting certain evidence at trial, which had been granted in an order of the same court dated November 29, 2011.

ORDERED that the order dated December 7, 2012, is affirmed insofar as appealed from, with costs.

A motion for leave to renew "shall be based on new facts not offered on the prior motion that would change the prior determination... and... shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2][3]; see Empire State Conglomerates v Mahbur, 105 A.D.3d 898, 899; Wells Fargo Bank, N.A. v Russell, 101 A.D.3d 860). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585, 585-586). Here, the defendant Creative Bath Products, Inc. (hereinafter the appellant), offered new facts not offered on the prior motion, but failed to set forth a reasonable justification for its failure to submit the new facts on the prior motion. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was for leave to renew (see Empire State Conglomerates v Mahbur, 105 A.D.3d at 899; Matter of Catherine V.D. [ Rachel G. ], 100 A.D.3d 992, 993).

MASTRO, J.P., ANGIOLILLO, LEVENTHAL and CHAMBERS, JJ., concur.


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