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Law Offices of Jonathan M. Cooper

When It Pays (& Doesn't Pay) to Seek Reargument of a Motion in NY

 

Anyone who has litigated breach of contract or commercial litigation matters before New York's courts for any appreciable amount of time has inevitably lost a motion here and there, and I am no exception to that rule. One of the remedies you have when you've lost a motion is seeking to re-argue the motion before the Court. But, before you can embark down that particular road, it is important to note that this relief is only appropriate under certain circumstances.

 

More particularly, New York's courts have summarized the criteria for granting re-argument as follows:

 

"A motion to reargue is addressed to the discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law (CPLR 2221[d][2]). It is not designed as a vehicle to afford the unsuccessful party an opportunity to argue once again the very questions previously decided (Gellert & Rodner v. Gem Community Mgt., Inc., 20 AD3d 388 [2nd Dept. 2005]). Nor is it designed to provide an opportunity for a party to advance arguments different from those originally tendered (Amato v. Lord & Taylor, Inc., 10 AD3d 374, 375 [2nd Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced (Levi v. Utica First Ins. Co., 12 AD3d 256, 258 [1st Dept. 2004]; Frisenda v. X Large Enterprises, Inc., 280 AD2d 514, 515 [2nd Dept. 2001]). Instead, the movant must demonstrate the matters of fact or law that he or she believes the court has misapprehended or overlooked (Hoffmann v. Debello-Teheny, 27 AD3d 743 [2nd Dept. 2006]). Absent a showing of misapprehension or the overlooking of a fact, the court must deny the motion (Barrett v. Jeannot, 18 AD3d 679 [2nd Dept. 2005]). Further, a motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may not be submitted or considered by the court (James v. Nestor, 120 AD2d 442 [1st Dept. 1986]; Philips v. Village of Oriskany, 57 AD2d 110 [4th Dept. 1997])."

 

In other words, you have to show that the court, in rendering its decision, effectively "missed the boat." Thus, as a practical matter, it is certainly understandable why these motions typically have a very low rate of success. But, if you are truly convinced that the Court did in fact "miss the boat," this is certainly a far less expensive alternative than perfecting an appeal in New York.