On June 9, 2025, Justice Reed of the New York County Commercial Division issued a decision in Cullinan v. New York Univ., 2025 NY Slip Op. 50945(U), holding that where a party moved for summary judgment before discovery was complete, it cannot seek renewal based on post-motion discovery, explaining:
Pursuant to CPLR 2221 (e) (2) and (3), a motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion. A showing of due diligence in the first factual presentation should be made to warrant a further inquiry into the new proposed facts. Leave to renew should be denied unless the moving party offers a reasonable excuse as to why the additional facts were not submitted on the original application.
In support of its application, Turner submits the deposition testimony of approximately eight (8) witnesses taken during discovery. Turner admits that at the time it filed its original motion for summary judgment, depositions of all parties had not yet occurred. Turner also admits that no testimony was submitted to the court in support of Turner’s motion for summary judgment. Nonetheless, according to Turner, the court should consider the testimony as new facts that warrant dismissal of plaintiff’s Labor Law § 200 claims.
Turner summarily states that it had a reasonable justification for not providing the facts, but offers no explanation or justification for why said testimony was not obtained before the original motion filing. Turner did not identify any due diligence undertaken to submit the testimony with the original application.
To warrant renewal, the application must be supported by new or additional facts which, although in existence at the time of a prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court. No such showing was made here.
Turner chose to move for summary relief without having the supporting evidence to warrant dismissal of the plaintiff’s claim. There is no argument that the existence of witnesses to support Turner’s claim was somehow unknown to it, or that documentary evidence that was otherwise unavailable was belatedly revealed. Turner must reasonably justify failing to present such facts on the prior motion. Deciding to make an early motion for summary judgment before the completion of discovery does not constitute a reasonable justification.
(Internal quotations and citations omitted).