

Amtrust-NP SFR Venture, LLC v Vazquez (2016 NY Slip Op 04871)





Amtrust-NP SFR Venture, LLC v Vazquez


2016 NY Slip Op 04871


Decided on June 21, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 21, 2016

Mazzarelli, J.P., Andrias, Saxe, Gische, Kahn, JJ.


1504 810148/12

[*1]Amtrust-NP SFR Venture, LLC, Plaintiff-Respondent,
vJames Vazquez, also known as James Vasquez, Defendant-Appellant, City of New York Environmental Control Board, et al., Defendants.


Steven W. Stutman, Melville (Douglas M. Jones of counsel), for appellant.
Houser & Allison, APC, New York (Jacqueline Muratore of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenny, J.), entered May 15, 2015, which, insofar as appealable, denied defendant's motion for renewal of a prior order, same court and Justice, entered February 10, 2015, granting plaintiff's motion for summary judgment, striking defendant's answer and counterclaims and appointing a referee to compute the sums due and owing to plaintiff under the subject note and mortgage, unanimously affirmed, without costs.
The court properly denied defendant's motion to renew. The affidavit of Stephen Dibert, and the additional documents attached, particularly the new purported copy of the note, were properly rejected by the court in that they were submitted for the first time in defendant's reply papers on the motion to renew and reargue, and plaintiff had no opportunity to respond to them (see All State Flooring Distribs., L.P. v MD Floors, LLC, 131 AD3d 834, 835-836 [1st Dept 2015]; Dannasch v Bifulco, 184 AD2d 415, 416-417 [1st Dept 1992]). The court also properly denied defendant's motion on the ground that he offered no justification whatsoever as to why he did not obtain the new evidence in time to submit it in opposition to plaintiff's original motion, and did not assert that he made any effort, let alone a diligent effort, to obtain this new evidence, which was readily available (see Altschuler v Jobman 478/480, LLC., 135 AD3d 439, 441 [1st Dept 2016]; Queens Unit Venture, LLC v Tyson Ct. Owners Corp., 111 AD3d 552 [1st Dept 2013]; compare Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374 [1st Dept 2001]).
This Court previously dismissed so much of this appeal as was based on the motion court's denial of defendant's motion to reargue (see order M-4360, entered November 24, 2015), which is not appealable. In light of the dismissal of the appeal, we reject defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 21, 2016
CLERK


