Most New York appellate practitioners who are confronted with an adverse appellate ruling are undoubtedly aware of the appellate remedies of motions for reargument and leave to appeal to the Court of Appeals. They, however, may not be familiar with renewal motions at the Appellate Division of the Supreme Court of the State of New York. This is not surprising because the statewide Practice Rules of the Appellate Division refer only to motions to reargue and for leave to appeal to the Court of Appeals, and make no reference to renewal motions (22 NYCRR §1250.16(d); see also 22 NYCRR §1250.4). That may be because renewal motions are often based on newly discovered evidence and it is settled that an appellate court's review is limited to the evidence before the motion court. See Khan v. State University of New York Health Science Center at Brooklyn, 271 A.D.2d 656 (2d Dep't 2000). There is, however, a narrow set of circumstances where renewal motions are available in the Appellate Division regarding a matter that is subject to judicial notice. These renewal motions are based on a change in the law, namely where new case law is rendered or a new statute goes into effect, which may be retroactively applied to a pending case. This article explores the scope of Appellate Division renewal motions based on a change in the law.

Understanding the scope of Appellate Division renewal motions based on a change in the law is made somewhat difficult by the fact that the Appellate Division does not state its reason for granting or denying motions, including renewal motions. When it grants a motion for reargument or renewal, the Appellate Division simply recalls and replaces the prior order with a new order. Conversely, when it denies a motion, it simply does so in a summary order. These precedents therefore provide little guidance about the scope of Appellate Division renewal motions based on a change in the law. A better guidance comes from the Appellate Division decisions that review trial level orders that either grant or deny renewal motions based on a change in the law. But before addressing those cases, a brief discussion of the evolution of trial level renewal motions based on a change in the law may be helpful.