DC Media Capital LLC v. Sivan — 100 A.D.3d 413

Majority

p. 413

DC Media Capital LLC, Doing Business as Newtek Media Capital, Respondent, v Avi Sivan et al., Appellants.

[952 NYS2d 888]

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered February 18, 2011, which denied defendants’ motion for leave to renew their motion to vacate an order and ensuing judgment entered on default, unanimously affirmed, with costs.

The “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 (see CPLR 2221 [e] [3]; Matter of Weinberg, 132 AD2d 190 , 210 [1st Dept 1987], lv dismissed 71 NY2d 994 [1988]). The claim that defendants’ former counsel mistakenly made the prior motion pursuant to

p. 414

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.

We have considered defendants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sweeny, Renwick, Richter and Román, JJ.

Cases cited

In re Beiny 132 AD2d 190 N.Y. App. Div. 1987-12-09 at 210 p. 413