In the Matter of Joseph Serviss, appellant, Incorporated Village of Floral Park, respondent. Index No. 3127/16
Offices of Louis D. Stober Jr., LLC, Mineola, NY, for
Brennan & Donnelly, LLP, Floral Park, NY (John M.
Donnelly of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, FRANCESCA E.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
proceeding pursuant to CPLR article 78 to review a
determination of the Board of Trustees of the Incorporated
Village of Floral Park dated, which terminated the
petitioner's employment as a senior tree pruner, the
petitioner appeals from an order of the Supreme Court, Nassau
County (Karen V. Murphy, J.), dated January 9, 2017. The
order, insofar as appealed from, denied that branch of the
petitioner's motion pursuant to CPLR 2221 which was for
leave to renew his opposition to the respondent's prior
motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the
petition, which had been granted in an order of the same
court dated July 22, 2016.
that the order dated January 9, 2017, is affirmed insofar as
appealed from, with costs.
petitioner commenced this proceeding pursuant to CPLR article
78 to review a determination of the Board of Trustees of the
Incorporated Village of Floral Park, which terminated his
employment as a senior tree pruner. The petitioner alleged
that his due process rights were violated because he was not
provided a hearing prior to the termination of his
employment. While acknowledging in his petition that these
due process protections were generally inapplicable to labor
class positions such as the one he held, the petitioner
asserted that Civil Service Law § 75 provides for such
protections for special categories, including "qualified
veterans and exempt firemen." The petitioner contended
that he was entitled to these protections by virtue of the
fact that he had been a "volunteer fire fighter with the
Rocky Point Fire Department since September 30, 2013."
Village moved pursuant to CPLR 3211(a) and 7804(f) to dismiss
the petition on the basis that it was deficient as a matter
of law, contending that the petitioner failed to allege in
his petition that he was an "exempt" firefighter as
defined in General Municipal Law § 200. In an order
dated July 22, 2016, the Supreme Court granted the
Village's motion and dismissed the proceeding. The
petitioner did not appeal from that order.
the petitioner moved pursuant to CPLR 2221, as relevant here,
for leave to renew his opposition to the Village's motion
to dismiss the petition. In support of that branch of his
motion which was for leave to renew, the petitioner submitted
a certificate and supporting documentation (hereinafter
together the certificate) to establish that he was an
"exempt" firefighter as defined in General
Municipal Law § 200. In an order dated January 9, 2017,
the Supreme Court, inter alia, denied that branch of the
petitioner's motion which was for leave to renew, holding
that he failed to offer a reasonable justification for
failing to submit the certificate in opposition to the
Village's motion to dismiss. The petitioner appeals from
general, a motion for leave to renew must be based upon new
facts not offered on the prior motion that would change the
prior determination" (Worrell v Parkway Estates,
LLC, 43 A.D.3d 436, 437). However, "[t]he
requirement that a motion for renewal be based on new facts
is a flexible one" (Gonzalez v Vigo Constr.
Corp., 69 A.D.3d 565, 566; see Borgia v
Rothberg, 148 A.D.3d 1109, 1109-1110; Matter of
Defendini, 142 A.D.3d 500, 502; JRP Holding, Inc. v
Pratt, 113 A.D.3d 823). The new or additional facts
presented "either must have not been known to the party
seeking renewal or may, in the Supreme Court's
discretion, be based on facts known to the party seeking
renewal at the time of the original motion"
(Deutsche Bank Trust Co. v Ghaness, 100 A.D.3d 585,
586; see Rowe v NYCPD, 85 A.D.3d 1001, 1003).
"However, in either instance, a reasonable
justification' for the failure to present such facts on
the original motion must be presented" (Deutsche
Bank Trust Co. v Ghaness, 100 A.D.3d at 586, quoting
[T]he Supreme Court lacks discretion to grant renewal where
the moving party omits a reasonable justification for failing
to present the new facts on the original motion'"
(Cioffi v S.M. Foods, Inc., 129 A.D.3d 888, 891,
quoting Jovanovic v Jovanovic, 96 A.D.3d 1019, 1020;
see Bazile v City of New York, 94 A.D.3d 929, 931).
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 (see JPMorgan
Chase Bank, N.A. v Novis, 157 A.D.3d 776; Kio Seob
Kim v Malwon, LLC, 155 A.D.3d 1017; Federal Natl.
Mtge. Assn. v Sakizada, 153 A.D.3d 1236, 1237;
Joseph v Simmons, 114 A.D.3d 644). Here, we agree
with the Supreme Court's finding that the petitioner
failed to offer a reasonable justification for his failure to
present the documents relating to his status as an
"exempt" firefighter in opposition to the original
motion to dismiss.
extent that the petitioner argues that the Supreme Court
should have denied the Village's underlying motion to
dismiss the petition, the propriety of that determination is
not properly before this Court as the petitioner failed to
appeal from the order dated July 22, 2016 (see CPLR
5501, 5513, 5515; Hecht v City of New York, 60
N.Y.2d 57, 61-62; Jones Sledzik Garneau & Nardone,
LLP v Schloss, 37 A.D.3d 417, 417-418).
the order dated January 9, 2017, must be affirmed ...