Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion to reargue or vacate the decision/order of April 25, 2018, and upon re argument modifying the courts decision and petitioner’s cross motion/opposition seeking civil contempt pursuant to CPLR 753. Papers Numbered Notice of Motion 1 Cross Motion/Opposition 2 Reply 3 DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on these Motions are as follows: Respondents by motion seeks to vacate and or reargue the court’s decision issued after trial dated April 25, 2018. Petitioner opposed said motion and cross moved for civil contempt pursuant to CPLR 753 for respondent’s failure to pay legal fees. The court notes the procedural posture of this case as follows. Petitioner commenced a non payment proceeding for rental arrears, respondent was represented by counsel and a trial ensued. After trial the court issued a decision dated April 25, 2018 awarding a judgment of possession and money in the amount of $30,823.50 in the petitioner’s favor. Respondents by order to show cause dated June 7, 2018 sought an extension to satisfy the judgment and petitioner cross moved for legal fees. Upon the courts order and after payment in court of $36,621.70 on August 22, 2018, the court vacated the judgment and warrant and set the matter down for a hearing on legal fees. The parties by stipulation on November 2, 2018 agreed to settle petitioner’s claim for legal fees for $7,000 to be paid by November 9, 2018. Respondent by order to show cause returnable February 7, 2019 sought to stop respondents eviction as the judgement was satisfied. The parties agreed by a two attorney stipulation dated February 6, 2019 that the proceeding was discontinued without prejudice to the right to collect legal fees agreed upon by court stipulation. Respondent now by order to show cause seeks to vacate and or reargue this courts decision dated April 25, 2018 presumably, although not articulated with particularity by the respondent, for relief pursuant to CPLR 2221 or CPLR 5015. Respondent’s attorney submits proof of a DHCR rent reduction order issued under docket # ZBH-230024-B filed by the tenant’s association listing the respondent, which froze respondents rent from November 1, 1987 through 2007. Respondent also submits documentation that petitioner in August 2017, was aware of the DHCR Rent Reduction order as he sought to restore the rent with DHCR. DHCR restored respondents rent under docket #FT 230043 OR effective September 1, 2017. Respondent argues that the petitioner misrepresented what the legal collectible rent was at the trial and has over charged her for numerous years. Respondent admits that although she had the rent reduction order in her possession, she did not present it to her attorneys or at trial, because she failed to realize the legal significance of said order. Respondent seeks to vacate the judgement after trial and or reargue this courts decision after trial, as the final judgment amount owed is incorrect in light of the DHCR rent reduction order. A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination (Worrell v. Parkway Estates, LLC, 43 AD3d 436 [2007]; CPLR 2221 [e][2]. However, the rule that the motion for renewal must be based upon new facts, is a flexible one (Gonzalez v. Vigo Const. Corp., 69 AD3d 565 [2010]; Borgia v. Rothberg, 148 AD3d 1109 [2017]. The new or additional facts presented either must not have been known to the party seeking renewal, or in the courts discretion, be based upon facts known to the party at the time. Deutsche Bank Tust Co. v. Ghaness, 100 Ad3d 585 [2012] The party seeking renewal must provide a reasonable justification for the failure to present such facts on the original motion. See Deutsche IBID; CPLR 2221[e][3]. A court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts (See Cioffi v. S.M. Foods Inc., 129 Ad3d 888 [2015]. A motion for leave to renew is not a “second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (See Matter of Serviss v. Incorporated Vil. Of Floral Park, 164 AD3d 512 [AD 2nd Dept 2017]);(JP Morgan Chase Bank, N.A. v. Novia, 157 Ad3d 776 [2018]; Kio Seob Kim v. Malwon, LLC, 155 AD3d 1017 [2017]; Federal Natl. Mtge. Assn. v. Sakizada, 153 Ad3d 1236 [2017]; Joseph v. Simmons, 114 Ad3d 644 [2014]);Elder v. Elder, 21 AD3d 1055 [2005]. A movant under CPLR 2221(e) bears a heavy burden of showing due diligence in presenting the new evidence (See Priant v. New York Transit Authority, 142 Ad3d 491 [A.D.2nd Dept 2016]). Additionally, some courts have held that the proper vehicle to address a decision after a final judgment is not a motion to renew pursuant to CPLR 2221, but a motion pursuant to CPLR 5015 for a party to be relieved of a judgment (Gorman v. Hess, 301 AD2d 683 [2003]; Matter of Urbach, 252 AD2d 318 [1999]). Under the herein circumstances, the court declines under CPLR 5015 to relieve the respondent of the judgment as respondent failed to prove, that with due diligence, she could have discovered the evidence prior to trial or within a reasonable time thereafter as required by CPLR 5015(a)(2) (See Maddux v. Schur, 53 AD3d 738 [AD 3rd Dept 2008](court did not abuse its discretion in denying motion to e relieved of courts order pursuant to CPLR 5015 [a][2]; Evergreen Bank N.A. v. Dashnaw, 262 Ad2d 737 [1991]. Respondent was represented by counsel from October 4, 2017 and the trial commenced February 2018 and ended March 2018, There was subsequent motion practice that concluded in November 2018. Respondent’s contention a year and a half later, that she did not realize the significance of the DHCR order which was available and in her possession, during the trial, despite having counsel, is unavailing. The court notes the respondent has also not timely filed an appeal with the appellate term, therefore making the judgment final. The court even if it were to consider respondent’s motion under a motion to reargue pursuant to CPLR 2221, has failed to offer a reasonable justification for not submitting relevant evidence that was available to her during the pendency of the trial (See United Med. Assoc. PLLC v. Seneca Ins. Co., Inc. (court providently exercised its discretion in denying motion to reargue where no reasonable justification was offered). The court notes that the herein motion is denied without prejudice to respondent’s rights in any other forum. Petitioner’s cross motion for contempt is also denied as the parties discontinued said case on February 6, 2019 without prejudice to petitioner’s claims, which may be sought in an appropriate forum. This constitutes the decision and order of the court. October 29, 2019 New York, New York
