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In re Serviss

Supreme Court of New York, Second Department

August 1, 2018

In the Matter of Joseph Serviss, appellant, Incorporated Village of Floral Park, respondent. Index No. 3127/16

          Law Offices of Louis D. Stober Jr., LLC, Mineola, NY, for appellant.

          Ryan, 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

         In a 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.

         ORDERED that the order dated January 9, 2017, is affirmed insofar as appealed from, with costs.

         The 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."

         The 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.

         Thereafter, 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 that order.

         "In 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 CPLR 2221[e][3]).

         " [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.

         To the 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).

         Accordingly, the order dated January 9, 2017, must be affirmed ...


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