Rose v. Levine

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Docket Number

Attorney(S)

Gribetz & Loewenberg, PLLC, New City, N.Y. (Kenneth Gribetz and Deborah Wolikow Loewenberg of counsel), for appellant. Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondent.

Judges

Mark C. Dillon
Jeffrey A. Cohen

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Smart Summary

Factual and Procedural Background

This appeal arises from an action to foreclose three mortgages. The plaintiff, Steve Rose, sought to renew his opposition to motions by defendant Robert Levine to hold him in civil or criminal contempt for violating a temporary restraining order and a preliminary injunction issued by the Supreme Court, Westchester County. The plaintiff also sought to vacate prior orders imposing fines and incarceration for civil contempt. The Supreme Court denied the plaintiff's motions, and this appeal challenges that denial.

Legal Issues Presented

Whether the plaintiff is entitled to leave to renew his opposition to the contempt motions under CPLR 2221(e).
Whether the plaintiff may vacate prior contempt-related orders under CPLR 5015(a)(2), CPL 440.10(1)(g) and (h), and the common law writ of coram nobis.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rose v. Levine, 84 A.D.3d 1206, 923 N.Y.S.2d 689	Previous determination that allegations of ineffective assistance of counsel in contempt proceedings were without merit.	Rejected plaintiff's coram nobis claim as previously decided and without merit.
Elder v. Elder, 21 A.D.3d 1055, 802 N.Y.S.2d 457	A motion for leave to renew is not a second chance to present facts that could have been raised earlier.	Supported denial of plaintiff’s motion to renew opposition due to lack of new facts and reasonable justification.
Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 872 N.Y.S.2d 146	Requirement that renewal motions be based on new facts not offered previously.	Reinforced that plaintiff failed to present new facts warranting renewal.
Matter of Korman v. Bellmore Pub. Schools, 62 A.D.3d 882, 879 N.Y.S.2d 194	Reasonable justification for failure to present facts on original motion is required for renewal.	Found plaintiff did not provide reasonable justification for failure to submit evidence earlier.
Heaven v. McGowan, 40 A.D.3d 583, 835 N.Y.S.2d 641	Discretion of the court to determine what constitutes reasonable justification for renewal.	Court exercised discretion properly in denying renewal motion.
Rowe v. NYCPD, 85 A.D.3d 1001, 926 N.Y.S.2d 121	Standard for reasonable justification in renewal motions.	Supported court’s discretionary denial of renewal motion.
Zito v. Jastremski, 84 A.D.3d 1069, 925 N.Y.S.2d 91	New evidence must be such that it would change the prior determination.	Found subject evidence would not have changed prior rulings.
Ryan v. Richmond County Yacht Club, Inc., 83 A.D.3d 1036, 922 N.Y.S.2d 155	Renewal motions require new, controlling facts not previously presented.	Reinforced denial of renewal due to absence of new controlling facts.

Court's Reasoning and Analysis

The court analyzed the plaintiff's motion for leave to renew under CPLR 2221(e), concluding that the plaintiff failed to present new facts that were not available at the time of the original motions. The court emphasized that a renewal motion is not an opportunity to reargue issues or present evidence that could have been previously submitted. Additionally, the plaintiff did not provide a reasonable justification for the failure to submit the purported new evidence earlier. The court also rejected the plaintiff's request to vacate prior contempt orders through coram nobis relief, noting that these claims had been previously litigated and found meritless. Consequently, the denial of the plaintiff's motions was a proper exercise of judicial discretion.

Holding and Implications

The order dated October 26, 2010, denying the plaintiff's motions for leave to renew and to vacate prior contempt orders, is affirmed.

The decision results in the continuation of the contempt sanctions against the plaintiff, including fines and incarceration until compliance. The court's ruling does not establish new precedent but upholds prior determinations and the discretionary standards governing motions for renewal and coram nobis relief.

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Ste v. ROSE, appellant,

Gribetz & Loewenberg, PLLC, New City, N.Y. (Kenneth Gribetz and Deborah Wolikow Loewenberg of counsel), for appellant. Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondent.

In an action to foreclose three mortgages, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated October 26, 2010, which denied his motion (1) pursuant to CPLR 2221(e) for leave to renew his opposition to a prior motion of the defendant Robert Levine, inter alia, to hold him in civil or criminal contempt for violating a temporary restraining order set forth in an order of the same court dated January 19, 2006, which had been granted in an order of the same court dated March 13, 2006, and for leave to renew his opposition to a prior motion of the defendant Robert Levine, inter alia, to hold him in civil contempt for violating a preliminary injunction set forth in the order dated March 13, 2006, which had been granted in an order of the same court dated October 19, 2009, and (2) pursuant to CPLR 5015(a)(2), CPL 440.10(1)(g) and (h), and the common law writ of coram nobis, to vacate the orders dated March 13, 2006, and October 19, 2009, and to vacate a prior order of the same court dated February 3, 2010, imposing fines and directing his incarceration until he purges his civil contempt by paying the associated fines.

ORDERED that the order dated October 26, 2010, is affirmed, with costs.

The plaintiff's contentions with respect to his allegations of ineffective assistance of counsel during the subject contempt proceedings, which formed the basis of his request for coram nobis relief, were previously raised by him and determined to be without merit on a prior appeal ( see Rose v. Levine, 84 A.D.3d 1206, 1208, 923 N.Y.S.2d 689).

“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” ( Elder v. Elder, 21 A.D.3d 1055, 1055, 802 N.Y.S.2d 457;see Matter of Allstate Ins. Co. v. Liberty Mut. Ins., 58 A.D.3d 727, 728, 872 N.Y.S.2d 146). A motion for leave to renew must be based upon new facts, not offered on the original application, “that would change the prior determination” (CPLR 2221[e][2] ), and the party seeking renewal must have a “reasonable justification” for the failure to present such facts on the original motion (CPLR 2221[e][3]; see Matter of Korman v. Bellmore Pub. Schools, 62 A.D.3d 882, 884, 879 N.Y.S.2d 194). What constitutes a “reasonable justification” is within the Supreme Court's discretion ( Heaven v. McGowan, 40 A.D.3d 583, 586, 835 N.Y.S.2d 641;see Rowe v. NYCPD, 85 A.D.3d 1001, 1003, 926 N.Y.S.2d 121). Here, the Supreme Court's denial of that branch of the plaintiff's motion which was for leave to renew his opposition to the contempt motions of the defendant Robert Levine, was a provident exercise of discretion, since the plaintiff failed to offer a reasonable justification as to why the subject “new” evidence was not submitted at the time of the prior motions and, in any event, the subject evidence would not have changed the prior determinations ( see Zito v. Jastremski, 84 A.D.3d 1069, 1071, 925 N.Y.S.2d 91;Ryan v. Richmond County Yacht Club, Inc., 83 A.D.3d 1036, 1037, 922 N.Y.S.2d 155).

The plaintiff's remaining contentions are without merit. DILLON, J.P., ANGIOLILLO, FLORIO and COHEN, JJ., concur.