Legal Memorandum: Motion to Renew in NY

Issue: In New York, when is a motion to renew based on newly discovered evidence appropriate and what are the standards for such a motion?

The general rule is that a motion to renew is based upon newly discovered evidence which was not available at the time of the prior motion.  While this rule is not absolute, a moving party seeking renewal based upon evidence that could have been proffered previously should demonstrate a reasonable excuse for failing to do so.”  Cannistra v. Gibbons, 224 A.D.2d 570, 639 N.Y.S.2d 48, 49 (2d Dep’t 1996). 

Renewal is properly denied where the moving party fails to establish that the material he seeks to rely upon for his renewal motion could not have been obtained through the exercise of due diligence prior to the original motion.  See, e.g., Hopkins v. City of New York, 248 A.D.2d 441, 669 N.Y.S.2d 667, 669 (2d Dep’t 1998); Pappas v. Saatchi and Saatchi, Co., 227 A.D.2d 109, 641 N.Y.S.2d 657 (1^st Dep’t 1996); In re Chartier, 254 A.D.2d 14, 677 N.Y.S.2d 785 (1^st Dep’t 1998) (trial court properly refused to consider new evidence on motion to renew where unavailability for prior motion was due to movant’s lack of diligence).  Accord, Altamore v. Sequa Capital Corp., 224 A.D.2d 469, 637 N.Y.S.2d 786 (2d Dep’t 1996) (motion to renew properly granted where motion to renew was based upon material which could not be obtained prior to original motion).  “Renewal is granted sparingly . . . it is not a second chance freely given to parties who […]