Practice point: Defendants' motion for leave to renew their motion to vacate an order and
ensuing judgment entered on default was denied because the self-styled “new
facts" submitted on renewal in the form of affidavits of merit could have
been submitted on the prior motion to vacate the default judgment, and
defendants failed to offer a reasonable justification for the failure to do so,
pursuant to CPLR 2221[e][3].
Student note: Defendants’ claim that their former counsel
mistakenly made the prior motion pursuant to CPLR 2221, which did not require
the submission of an affidavit of merit, was undermined by counsel's
identification of the motion as one to vacate a prior order and judgment.
Case:
DC Media Capital LLC v. Sivan, NY Slip Op 07391 (1st
Dept.
2012).
Here is the decision.
Tomorrow’s issue: Admissibility of third-party business records.
