The following papers were read on this motion: Adolescent Offender’s Notice of Motion to Renew and Reargue and supporting papers 1 People’s Opposition to Adolescent Offender’s Motion for Leave to Renew and Reargue and supporting papers 2 Adolescent Offender’s Affirmation in Reply 3 DECISION AND ORDER The Adolescent Offender K.F. (D.O.B. 00/00/0000) (hereinafter, the “AO”), has moved pursuant to CPLR §2221(d) and (e) to renew and reargue his opposition to the People’s motion opposing removal of his case to the Family Court, which this Court granted by order dated April 8, 2020. The People have opposed the AO’s Motion to Renew and Reargue, and the AO has filed a reply affirmation in further support thereof. The AO’s Motion to Renew and Reargue is determined as follows: The AO is charged with one count of robbery in the first degree [Penal Law §160.15(1)] and one count of assault in the first degree [Penal Law §120.10(1)]. On February 11, 2020, this Court conducted its statutory review of the accusatory instrument pursuant to CPL §722.23, and thereafter issued a Decision and Order dated March 11, 2020, in which the Court found that the People had failed to establish any of the three statutory factors which would disqualify the AO’s case from being automatically removed to the Family Court. [CPL §722.23]. By Motion dated March 20, 2020, the People then opposed removal of the AO’s case due to the existence of “extraordinary circumstances”. (CPL §722.23[1][b]). The AO submitted opposition to the People’s motion. The Court’s Decision and Order dated April 8, 2020, which granted the People’s motion opposing removal of the AO’s case to the Family Court, is the subject of the AO’s Motion to Renew and Reargue. A motion for leave to reargue: “…[2] shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion”. A motion for leave to renew: “…[2] shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and [3] shall contain reasonable justification for the failure to present such facts on the prior motion”. (CPLR §2221). A combined motion for leave to reargue and leave to renew, such as the AO’s motion in this case, “…shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination”. (CPLR §2221). AO’S MOTION FOR REARGUMENT “A motion for leave to reargue pursuant to CPLR §2221 is addressed to the sound discretion of the court and may be granted only upon a showing ‘that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision”. (People v. Rodriguez, 60 Misc.3d 1204 [A], at *1 [Sup. Ct. Kings Cty. 2018]; see also People v. Illis, 2020 WL 3443218 [2d Dept. 2020]; CPLR §2221[d][2]). Reargument “is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those already asserted”. (Rodriguez, supra, 60 Misc.3d at *1; see also People v. Manzueta, 62 Misc.3d 187, 189 [NY City Crim. Ct. 2018] [recognizing that the court has the power and discretion to correct its own mistakes, including the power to grant leave to reargue, where appropriate, but reiterating that CPLR §2221 is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided]). In this case, the Court has reviewed the AO’s motion papers on both his Motion to Reargue and his prior motion opposition papers, and finds that both sets of papers advance essentially the same arguments and raise the same points. The “legal standard, facts and circumstances” that the AO argues were “overlooked or misapprehended” [Affirmation in Reply of Dennis M. Lemke, Esq., dated July 8, 2020 ["Lemke Aff. in Reply"], 3], are still the same points and facts from the AO’s opposition to the People’s earlier motion, they are merely “couched in terms of a motion to reargue”. (Karakashian v. Peter Fingar Agency, Inc., 50 Misc.3d 1226[A], at *2 [Sup. Ct. Greene Cty. 2015]). The AO has failed to show that the Court overlooked or misapprehended any relevant facts in granting the People’s earlier motion opposing removal of the AO’s case to the Family Court. Additionally, while the AO evidently disagrees with the Court’s determination that “extraordinary circumstances” existed which disqualified removal of the AO’s case to the Family Court pursuant to CPL §722.23, he has failed to demonstrate that the Court misapprehended or misapplied the controlling principle of law in granting the People’s earlier motion. (People v. Rodriguez, 60 Misc.3d 1204[A], at *1 [Sup. Ct. Kings Cty. 2018]). The AO’s application is outside the guise of CPLR §2221 [d] and is therefore DENIED. AO’S MOTION FOR RENEWAL “A motion for leave to renew ‘shall be based upon new facts not offered on the prior motion that would change the prior determination’…'or may, in the [trial court's] discretion, be based on facts known to the party seeking renewal at the time of the original motion’.” (People v. Quesada, 177 AD3d 774, 775 [2d Dept. 2019]; CPLR §2221[e][2]). “In either instance, the motion ‘shall contain reasonable justification for the failure to present such facts on the prior motion”. (Quesada, supra, 177 AD3d at 775; CPLR §2221[e][3]). “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, e.g., Donovan v. Rizzo, 149 AD3d 1038, 1039 [2d Dept. 2017]; Rose v. Levine, 98 AD3d 1015, 1015-16 [2d Dept. 2012]; People v. Frazier, 2011 WL 5152991, at *1 [Sup. Ct. Kings Cty. 2011]). In this case, the facts not offered on the prior motion, and upon which the AO’s renewal motion is based, consist of the AO suffering from learning disorders and the AO having mental health conditions. The AO contends that these facts constitute “mitigating circumstances” which the Court should consider when determining whether “extraordinary circumstances” exist such that the AO’s case should remain in the Youth Part. These facts existed and were known to the AO at the time that he filed his earlier opposition papers to the People’s motion. (Affirmation in Support of Dennis M. Lemke, Esq., dated June 16, 2020 ["Lemke Aff. in Support of Motion to Renew"], 10). His counsel argues that the “one critical reason” for the AO’s failure to present these facts in his earlier opposition is that the “COVID-19 pandemic made it nearly impossible to secure records in support of” his learning disabilities and mental health condition. (Lemke Aff. in Support of Motion to Renew, 10). The Court has reviewed the arguments raised by both parties in their respective motion papers and has reviewed the exhibits appended to the AO’s motion papers. The AO wholly relies on the COVID-19 pandemic to justify his failure to include such facts in his earlier motion opposition papers, but such is not a “reasonable” justification for his omission of such facts. (Rose v. Levine, 98 AD3d 1015, 1016 [2d Dept. 2012] [what constitutes a "reasonable justification" is within the trial court's discretion]). For example, even accepting as true the somewhat conclusory explanation that the COVID-19 pandemic “made it nearly impossible to secure” school and medical records, the AO offers no explanation as to why the AO in his prior motion opposition could not have, for example, presented such facts via an affirmation or affidavit(s) from a person or persons with personal knowledge1 of the AO’s educational disabilities and mental health conditions. Indeed, the Court finds it notable that the AO’s Motion to Renew includes an extensive and detailed narrative comprehensively explaining the AO’s educational and mental health history, while the AO’s earlier motion papers do not even mention the existence of such facts at all. Such could have been mentioned in the attorney’s affirmation or a supporting affidavit from the AO, his parents, or an educational or mental health provider. Accordingly, the Court lacks the discretion to grant the AO’s Motion to Renew due to his failure to provide a reasonable justification for the failure to include such facts in the earlier motion opposition papers. (See, Serviss v. Incorporated Village of Floral Park, 164 AD3d 512 [2d Dept. 2018]; Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437 [2d Dept. 2007]; see also Cioffi v. S.M. Foods, Inc., 129 AD3d 888, 891 [2d Dept. 2015]). As the AO’s Motion to Renew must be denied on these grounds, the Court need not address whether such facts would have changed the Court’s prior determination of the People’s motion opposing removal of the AO’s case to the Family Court. Based on the foregoing, the AO’s Motion to Renew is DENIED. Accordingly, the AO’s Motion for Leave to Reargue is DENIED, and the AO’s Motion for Leave to Renew is DENIED. All other applications not specifically addressed herein are deemed DENIED. This constitutes the opinion, decision and order of this Court. Dated: July 17, 2020
