SUPREME COURT OF THE STATE OF NEW YORK

 Appellate Division, Fourth Judicial Department

601 

CA 13-02033 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND LINDLEY, JJ. 

 

 

DIPIZIO CONSTRUCTION COMPANY, INC., 

PLAINTIFF-PETITIONER-RESPONDENT, 

 

V MEMORANDUM AND ORDER

 

ERIE CANAL HARBOR DEVELOPMENT CORPORATION, 

DEFENDANT-RESPONDENT-APPELLANT. 

(APPEAL NO. 2.)

 

PHILLIPS LYTLE LLP, BUFFALO (KENNETH A. MANNING OF COUNSEL), FOR 

DEFENDANT-RESPONDENT-APPELLANT. 

HISCOCK & BARCLAY, LLP, BUFFALO (MICHAEL E. FERDMAN OF COUNSEL), FOR 

PLAINTIFF-PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Timothy J. 

Walker, A.J.), entered November 1, 2013. The order granted the motion 

of plaintiff-petitioner seeking leave to renew and, upon renewal, directed 

that defendant-respondent shall not compromise or take any action that 

would effectively compromise plaintiff-petitioner=s claims against it. 

It is hereby ORDERED that the order so appealed from is unanimously 

reversed on the law without costs and the motion is denied. 

Memorandum: Supreme Court erred in granting the motion of 

plaintiff-petitioner (plaintiff) seeking leave to renew its prior motion 

to enjoin defendant-respondent (defendant) from terminating the 

construction agreement (Contract) between the parties (see DiPizio Constr. 

Co., Inc. v Erie Canal Harbor Dev. Corp. [appeal No. 1], ___ AD3d ___ 

[Aug. 8, 2014]), and, upon renewal, granting plaintiff the injunctive 

relief sought. It is well established that a motion for leave to renew 

Ashall be based upon new facts not offered on the prior motion that would 

change the prior determination,@ and Ashall contain reasonable 

justification for the failure to present such facts on the prior motion@

(CPLR 2221 [e] [2], [3]; see Luppino v Mosey, 103 AD3d 1117, 1118). 

Plaintiff, as the movant, Abore the burden of proving that the new evidence 

[it] sought to present could not have been discovered earlier with due 

diligence and would have led to a different result@ (Matter of Lamar Cent. 

Outdoor, LLC v State of New York, 64 AD3d 944, 951). We conclude that 

plaintiff failed to meet its burden. 

In denying plaintiff=s initial motion for an injunction, the court 

concluded that plaintiff would not suffer irreparable harm inasmuch as 
-2- 601 

CA 13-02033 

plaintiff had an adequate remedy at law, i.e., monetary damages against 

defendant. In seeking leave to renew, plaintiff contended that, following 

the denial of the initial motion, defendant terminated the Contract with 

plaintiff and thereafter pursued settlement negotiations with plaintiff=s 

surety, Travelers Insurance Company (Travelers), while excluding 

plaintiff from the negotiations. Plaintiff thus contended that such new 

evidence established that plaintiff would be unable to secure money damages 

against defendant and would have led to a different result on the initial 

motion for injunctive relief. 

It is undisputed that, before the initial motion, Travelers began 

sending representatives to meetings in an effort to negotiate a settlement 

between the parties. It is also undisputed that Travelers had entered 

into a surety agreement with plaintiff long before the initial motion 

was heard. We therefore conclude that the ongoing negotiations and 

Traveler=s involvement in the process were Awithin the purview of 

plaintiff=s knowledge at the time@ of plaintiff=s original motion (Tibbits 

v Verizon N.Y., Inc., 40 AD3d 1300, 1303; see Kirby v Suburban Elec. Engrs. 

Contrs., Inc., 83 AD3d 1380, 1381, lv dismissed 17 NY3d 783). To the 

extent that plaintiff now contends that its exclusion from the negotiations 

constitutes new evidence that would change the result, we reject that 

contention. Plaintiff failed to submit any evidence, such as the surety 

agreement, to support its contention that the ongoing negotiations between 

defendant and Travelers constitutes new evidence that will impact 

plaintiff=s ability to secure its remedy against defendant. If in fact 

that surety agreement, had it been submitted, would have supported 

plaintiff=s contention that plaintiff had lost the ability to secure an 

adequate remedy at law, we conclude that plaintiff failed to demonstrate 

that the evidence Awas not in existence or not available at the time of 

[the original motion]@ (Kirby, 83 AD3d at 1381). Thus, plaintiff could 

have submitted that surety agreement in support of the original motion. 

AAlthough a court has discretion to >grant renewal, in the interest of 

justice, upon facts [that] were known to the movant[] at the time the 

original motion was made= . . . , it may not exercise that discretion unless 

the movant[] establish[es] a >reasonable justification for the failure 

to present such facts on the prior motion= @ (id., quoting CPLR 2221 [e] 

[3]). Plaintiff provided no such justification. 

Based on our determination, we do not address defendant=s remaining 

contentions. 

Entered: August 8, 2014 Frances E. Cafarell

Clerk of the Court