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Matter of D’Elia, NYLJ, June 4, 2007, at 29, col 3…cont

The petitioner contends that her motion for leave to renew should be granted because, at the time of her prior motion for summary judgment, she did not possess transcript pages nine through 16 of the decedent’s deposition, the HIPAA form or the rehabilitation center billing statement. She also asserts that in view of the alleged new material, sanctions should be imposed on the objectant and the objectant’s attorney for withholding the transcript and for submitting, in opposition to the summary judgment motion, alleged knowingly false affidavits to the effect that the decedent was domiciled in New Jersey at the time of his death.

In opposition to the motion to renew, the objectant annexes material submitted previously in opposition to the petitioner’s motion for summary judgment and contends that: (1) the alleged new material was available at the time of the prior motion, and the petitioner fails to explain why she prematurely moved for summary judgment before discovery was concluded or why she could not obtain the alleged new material previously; (2) in any event, the alleged new material viewed in conjunction with the petitioner’s deposition testimony does not controvert this court’s finding that there is an issue of fact as to domicile and, due to evidence of a New Jersey domicile, sanctions are not warranted; and, (3) the petitioner’s testimony at her deposition demonstrates that the decedent was domiciled in New Jersey, as he had moved his personal papers to his office, he had only two boxes and a small suitcase of his belongings remaining at the Bronx address when he died, and the petitioner admitted that the decedent was already residing primarily in New Jersey when he died and that she and her son intended to move into an apartment with the decedent in New Jersey after the son’s school year finished.

The petitioner replies that: (1) by withholding the transcript pages and submitting false affidavits in opposition to the prior motion, the objectant and her attorney, in effect, seek to impeach their own witness, the decedent, who was the former client of the objectant’s attorney in the personal injury action; (2) the objectant is not prejudiced by the renewal motion and has failed to controvert the timing of when the alleged new material was discovered; (3) the evidence demonstrates that the decedent had a temporary presence in New Jersey from the time of the accident to the time of his death, and although the decedent intended to move his family to New Jersey in the future, his domicile remained in the Bronx; and, (4) the objectant withheld evidence of the decedent’s Bronx domicile at the time of the motion for summary judgment.

CPLR 2221(e) authorizes a motion for leave to renew based on new facts not offered on the prior motion that would change the prior determination provided there is reasonable justification for the failure to present such facts on the prior motion. Generally, where a movant fails to meet either or both requirements, the motion for leave to renew is properly denied (see B.M.H. Mgt., Inc. v. 81 & 3 of Watertown, Inc., 16 AD3d 1074 [2005]; Brown v. Citibank, N.A., 5 AD3d 342 [2004]; Cuccia v. City of New York, 306 AD2d 2 [2003]).

Nonetheless, courts have discretion to grant a motion to renew in the interest of justice even where all the requirements for renewal are not met (see Bank One v. Mon LeangMui, 38 AD3d 809 [2007]). Thus, the requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion (Lawman v. Gap, Inc., 38 AD3d 852 [2007], quoting Gadson v. New York City Hous.Auth., 263 AD2d 464 [1999]), provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion (Progressive Northeastern Ins. Co. v. Frenkel, 8 AD3d 390 [2004]; Merchants Bank v. Israel Discount Bank, 200 AD2d 540 [1994]). However, renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Hart v. City of New York, 5 AD3d 438 [2004], lv denied 3 NY3d 601 [2004]; Matter of M. Kraus, Inc., 229 AD2d 347 [1996], appeal dismissed 89 NY2d 916 [1996]; Lau v. Sullivan Co. District Attorney, 264 AD2d 912 [1999]).

Here, the petitioner annexed to the subject summary judgment motion, as well as to her prior motion for summary judgment, transcript pages one through eight of the decedent’s March 24, 2006 deposition. Although the petitioner now claims that she lacked transcript pages nine through 16, as well as the HIPAA-compliant authorization and the rehabilitation center billing statement, she does not provide any reasonable justification for failing to obtain a complete copy of the transcript or of those documents at any time prior to her initial motion for summary judgment.

As a result, the branch of the petitioner’s motion seeking leave to renew is denied (see Hart v. City of New York, 5 AD3d at 438; Brown v. Citibank, N.A., 5 AD3d at 342; Cuccia v. City of New York, 306 AD2d at 2; Lau v. Sullivan Co. District Attorney, 264 AD2d at 912; Matter of M. Kraus, Inc., 229 AD2d at 348). The absence of any reasonable justification by the petitioner for her failure to exercise due diligence in obtaining the alleged new material, and the portion of the decedent’s testimony submitted on the prior personal injury motion indicating that he lived in New Jersey after the accident, warrant the denial of the branch of the petitioner’s motion seeking to impose sanctions on the objectant and her attorney for submitting allegedly false affidavits (cf. 22 NYCRR 130-1.1[c][3]; Relleh Indus. Corp. v. Tickler Sys., Inc., 290 AD2d 404 [2002]).

Even if the court considered the newly presented evidence, there remain factual issues that need to be resolved at a hearing before there can be a determination as to where the decedent was domiciled on the date of his death. After a hearing, the petitioner may prevail on the domicile issue for the reasons advanced by her; however, it is also conceivable that the proof adduced at a hearing might establish that, by the date of his death, the decedent had already established a domicile in New Jersey, where he was to be joined by the petitioner when her son finished school in June. Finally, and assuming, arguendo, that the marriage was a sham but the petitioner was nevertheless the surviving spouse for inheritance purposes under New York Law (see Bennett v. Thomas, 38 AD2d 682 [1971]; Matter of Dominguez, 2002 WL 31844696), this does not necessarily preclude finding that the decedent died a domiciliary of New Jersey while the petitioner was domiciled in New York.

Accordingly, the petitioner’s motion is denied in its entirety. The attorneys for both sides are to appear for a final pre-trial conference on September 8, 2008 at 9:30 a.m., in courtroom 406, at which time, a trial date on the domicile issue will be set.

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