           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
