        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

550
CA 15-01661
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


SAL BARBIERI, DOING BUSINESS AS NORTHSIDE
ROOFING, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAVID R. MILES, DEFENDANT-APPELLANT.


PHETERSON SPATORICO LLP, ROCHESTER (DERRICK A. SPATORICO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

THOMAS C. SANFILIPO, ROCHESTER, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered December 19, 2014. The order granted the
motion of plaintiff for leave to renew his motion for summary judgment
dismissing defendant’s counterclaims and, upon renewal, granted the
motion for summary judgment and dismissed the counterclaims.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the counterclaims are reinstated.

     Memorandum: Defendant appeals from an order that granted
plaintiff’s motion for leave to renew his prior motion for summary
judgment dismissing defendant’s counterclaims and, upon renewal,
dismissed the counterclaims. Plaintiff commenced this action
asserting a single cause of action for breach of contract, alleging
that defendant failed to pay plaintiff for the materials and the work
he performed to replace the roof on defendant’s residence. In his
amended answer, defendant asserted counterclaims for damages based on,
inter alia, plaintiff’s failure to replace the roof in a workmanlike
manner. Plaintiff initially sought summary judgment on his complaint
and summary judgment dismissing the counterclaims but, in a letter
from his attorney to Supreme Court, he clarified that the motion
contained a “typographical error” and that he sought summary judgment
only on the counterclaims. The court nevertheless stated in its
decision on the original motion that plaintiff “moved for summary
judgment, seeking payment for the original roof work.” Plaintiff
thereafter moved for leave to renew his motion on the grounds that the
court had misconstrued his original motion, and that he had obtained
new evidence in support of his original motion, i.e., a release that
defendant had executed releasing plaintiff “from any and all claims
past and future” in consideration of the money paid to defendant by
plaintiff’s insurance carrier. Defendant opposed the motion for leave
                                 -2-                           550
                                                         CA 15-01661

to renew on the ground that plaintiff had the release in his
possession several months before he moved for summary judgment
dismissing the counterclaims.

     We agree with defendant that the court erred in granting
plaintiff’s motion for leave to renew. Although a court has
discretion to grant a motion for leave to renew “ ‘in the interest of
justice, upon facts which were known to the movant at the time the
original motion was made’ . . . , it may not exercise that discretion
unless the movant establishes a ‘reasonable justification for the
failure to present such facts on the prior motion’ ” (Robinson v
Consolidated Rail Corp., 8 AD3d 1080, 1080). Here, plaintiff failed
to provide a reasonable justification for his failure to present the
release in support of his original motion for summary judgment
dismissing the counterclaims (see GMAC Mtge., LLC v Spindelman, 136
AD3d 1366, 1367).




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
