IN RE CHAIM KOPICEL, pet-ap, v. JOSEPH SCHNAIER, res, MARK ARZOOMANIAN

2538-2538A. IN RE CHAIM KOPICEL, pet-ap, v. JOSEPH SCHNAIER, res, MARK ARZOOMANIAN res-res Law Office of Jeffrey Fleischmann, PC, New York (Jeffrey Fleischmann of counsel), for ap Sichenzia Ross Friedman Ference LLP, New York (Sameer Rastogi of counsel), for res Order, Supreme Court, New York County (Anil C. Singh, J.), entered November 4, 2015, which, inter alia, denied in part the petition pursuant to Debtor and Creditor Law §274, unanimously modified, on the law, to award petitioner prejudgment interest under CPLR 5001, and otherwise affirmed, without costs. Order, same court and Justice, entered April 19, 2016, which granted respondents' motion to renew and, upon renewal, vacated the November 4, 2015 order, unanimously reversed, on the law and in the exercise of discretion, without costs, and the prior order reinstated as modified.

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2538-2538A. IN RE CHAIM KOPICEL, pet-ap, v. JOSEPH SCHNAIER, res, MARK ARZOOMANIAN res-res Law Office of Jeffrey Fleischmann, PC, New York (Jeffrey Fleischmann of counsel), for ap Sichenzia Ross Friedman Ference LLP, New York (Sameer Rastogi of counsel), for res Order, Supreme Court, New York County (Anil C. Singh, J.), entered November 4, 2015, which, inter alia, denied in part the petition pursuant to Debtor and Creditor Law §274, unanimously modified, on the law, to award petitioner prejudgment interest under CPLR 5001, and otherwise affirmed, without costs. Order, same court and Justice, entered April 19, 2016, which granted respondents’ motion to renew and, upon renewal, vacated the November 4, 2015 order, unanimously reversed, on the law and in the exercise of discretion, without costs, and the prior order reinstated as modified.

Renewal should have been denied where, as here, respondents offered no reasonable justification for failing to proffer the “newly discovered” evidence on the original order to show cause, when that evidence had been in their possession for years (see Queens Unit Venture, LLC v. Tyson Ct. Owners Corp., 111 AD3d 552, 552553 [1st Dept 2013]). It was further an abuse of discretion to allow renewal where respondents used it as an opportunity to change legal theories, after they had the court’s initial decision (Foley v. Roche, 68 AD2d 558, 568 [1st Dept 1979]). Even had the court properly considered the unsworn, unsigned net worth statement of the debtor, prepared a year before the transaction at issue, it would have been insufficient to rebut the presumption of insolvency (cf. MATTER of Shelly v. Doe, 249 AD2d 756, 757 [3rd Dept 1998]).

IN RE CHAIM KOPICEL, pet-ap, v. JOSEPH SCHNAIER, res, MARK ARZOOMANIAN

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