Global Bus. Inst. v Rivkin Radler, LLP ;2012 NY Slip Op 31057(U); April 16, 2012; Supreme Court, New York County ;Docket Number: 104918/06 ;Judge: Doris Ling-Cohan is a textbook decision on when and how summary judgment is applied in Legal Malpractice.  Case is simple.  Plaintiff hired Rivkin Radler to negotiate a real estate lease.  There was a long delay before plaintiff could take possession, and during that time the RE taxes escalated.  Plaintiff argued that the lease should have limited the start of the escalation period to when plaintiff got possession.  It did not.  May RR get summary judgment?

"Rivkin Radler next argues that both Global’s “substantial completion/lost profit/consequential damages claims and tax escalation claims are substantively insufficient as a matter of law,” and should be dismissed on that ground. See Defendant’s Memorandum of Law, at 5-17. Global responds that there are issues of fact as to each element of its claims that preclude summary judgment and dismissal at this juncture. See Plaintiffs Memorandum of Law, at 15-23. After careful consideration, the court finds for Global.

In Leder v Spiegel(31 AD3d 246,267 [ 1” Dept 2006 the Appellate Division, First Department, noted that “[in order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages.” Further, with respect to the element of proximate cause, the First Department noted in Fletcher v Boies, Schiller h Flexner, LLP (75 AD3d 469,469 [1st Dept 2010) that a plaintiff must demonstrate that “but for defendants’ malpractice in failing to advise her properly, she ‘would have avoided some actual ascertainable damage,’ including sufficient detail as to the ‘nature of the underlying claim .

Rivkin Radler next argues that the element of attorney negligence was not present with respect to those claims because it did not depart “from generally accepted standards of practice” during the negotiation of the lease. See Defendant’s Memorandum of Law, at 8-9. Rivkin Radler supports this argument with an affidavit from one Lloyd Shor (Shor), who is described as a “commercial leasing expert.” See Shor Reply Affidavit, f 10. Global replies that Rivkin Radler did breach its duties to Global by departing from generally accepted standards of lease negotiating practice, and has presented affidavits from “damages expert” Morton Cohen (Cohen) and attorney Martin Stein (Stein) to support its allegations. See Plaintiff‘s Memorandum of Law, at 16-1 7; Cohen and Stein Affidavits in Opposition. Without delving into the merits at this juncture, the court merely concludes that the competing experts affidavits indicate the existence of an issue of fact as to whether Rivkin Radler was negligent during the lease negotiations, and that that issue precludes any grant of summary judgment. Therefore, for the purposes of this motion, the court rejects Rivkin Radler’s claim of no negligence.

Finally, with respect to Global’s substantial completion/lost profit/consequential damages claims, Rivkin Radler argues that the damages element is insufficient because it is based on speculation. See Defendant’s Memorandum of Law, at 9- 1 1. Global responds that either lost profits or  consequential damages are capable of being measured via formulae discussed by its experts in their affidavits. See Plaintiffs Memorandum of Law, at 2 1-23. “The damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence [internal citation omitted].” Zarin v Reid & Priest, 184 AD2d 385,387-388 (1“ Dept 1992). The court agrees that lost profits and consequential damages as a result of an almost four-year delay in being able to enter the lease premises are the sorts of damages that are susceptible of calculation. "

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U);  Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case. Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use. (Put aside why a rent stabilized tenant could have three apartments?). Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period. At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, a plaintiff must show that the attorney “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Volpe v Canfield, 237 AD2d 282,283 that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle. Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001])."
 

Of the many aphorisms in law, "not good deed goes unpunished" is a pungent reminder of the Newtonian law that every action creates an equal reaction.  Here, in Campbell v Planet Asef Realty 2012 NY Slip Op 50679(U)   Decided on April 10, 2012   Appellate Term, Second Department  we see a recurring legal malpractice situation in one sector of the housing market.  It is the packaged closing for buyer.  In this situation buyer expects broker to provide inspection, mortgage negotiation, assessment and attorney for closing. 
 

"On September 2, 1998, plaintiff and a friend of hers went to the office of defendant Planet Asef Realty (Planet Asef). A broker who worked for Planet Asef showed them a house in Jamaica, New York. Without consulting an attorney, plaintiff and her friend returned to the Planet Asef office on the following day, where they signed a contract to purchase the house in "as is" condition, for the asking price of $189,000. The contract included warranties that the plumbing, heating and electrical systems were in working order and that the roof was free of leaks. On September 25, 1998, plaintiff and her friend consummated their purchase of the house.

Plaintiff brought this action against the seller of the house, the brokerage agency, and [*2]Robert Carrozzo, Esq., the attorney who had represented her at the closing, among others, to recover for damages she had allegedly incurred as a result of the purchase of the house. At her deposition, plaintiff indicated that she had understood that the broker would perform all necessary pre-closing services, including having the premises appraised, obtaining a mortgage commitment for plaintiff, and finding a lawyer to represent her at the closing.

At his deposition, Carrozzo testified that, on September 25, 1998, he had just completed another closing at the office of Planet Asef, when he was approached by a representative of Planet Asef and asked if he could represent plaintiff at her closing. He stated that, after agreeing to represent plaintiff, he had met with her for several minutes before the closing. Carrozzo said that, upon learning that plaintiff had not previously had the house inspected, he had drafted an additional one-page document, which was signed by the seller, plaintiff and her co-purchaser, and which extended both plaintiff’s right to have the premises inspected and the seller’s guaranty of the plumbing, heating and electrical systems and the roof for a period of eight days following the closing. Thereafter, plaintiff closed on the purchase of the house.

Plaintiff failed to have the house inspected during the eight days following the closing or, indeed, until July 1999, at which time she learned that damage from a former structural fire had apparently been cosmetically masked, and that the house required structural remediation, for an estimated cost of $65,000 to $80,000.

At the time plaintiff met Carrozzo, she had already entered into a contract to purchase the house in "as is" condition, with guarantees only as to the plumbing, heating and electrical systems, as well as the roof, none of which were to survive closing. New York adheres, in general, to the doctrine of caveat emptor in real property sales (e.g. Bernardi v Spyratos, 79 AD3d 684, 687 [2010]; Beach 104 St. Realty, Inc. v Kisslev-Mazel Realty, LLC, 76 AD3d 661, 664 [2010]), and a purchaser who, having failed to perform due diligence as to the condition of property prior to signing a contract that provides for the sale of real property in "as is" condition, [*3]is bound by the contract despite structural deficiencies she may later discover in the property (see Daly v Kochanowicz, 67 AD3d 78 [2009]).

Here, plaintiff’s complaints arise from later-discovered structural deficiencies in the property. As Carrozzo demonstrated that plaintiff had committed to the purchase of the property in "as is" condition before she had met Carrozzo and before he had performed legal services for her, Carrozzo presented evidence that plaintiff was unable to prove at least one essential element of her cause of action against him: to wit, that by a breach of his duty, Carrozzo had caused plaintiff’s alleged damages. It was thus incumbent on plaintiff to come forward with evidence that a triable issue of fact existed as to Carrozzo’s liability (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff failed to meet this burden, we conclude that the Civil Court properly awarded summary judgment dismissing plaintiff’s cause of action against Carrozzo for legal malpractice. "

Legal Malpractice litigation is ubiquitous and arises in many interesting and unique settings.  In Abramowitz v Lefkowicz & Gottfried, LLP  2012 NY Slip Op 31011(U)  April 11, 2012
Sup Ct, Nassau County  Docket Number: 015385-11  Judge: Arthur M. Diamond  we see legal malpractice litigation after the fallout of contract litigation claims between a company which designed collective coins and the Daily News, which had an agreement to market, promote and advertise the coins and to share profits.  It fell apart.

As Chief Financial Officer of23KT Gold Collectibles, Abramowitz retained the law firm to represent it in connection with its dispute with the Daily News on March 31 , 2009. More specifically, the law firm was retained to institute a lawsuit on behalf of 23KT Gold Collectibles against the Daily News and to defend against anticipated counterclaims or retaliatory claims advanced by the Daily News. The Retainer Agreement provided that Lefkowicz & Gottfried cannot, and therefore does not, in any manner by entering (that Agreement or otherwise, make any promises or guarantees with regard to the outcome of the Client’s claims " and that it was not retained to represent 23KT Gold Collectibles with regard to "an appeal of any sort or kind.

In this action seeking to recover for inter alia, legal malpractice, the plaintiffs maintain that  Lefkowicz & Gottfried should have notified the Daily News that it was in breach before commencing
23KT Gold Collectibles’ first action against it; that they negligently drafted the first complaint and
failed to cure the vital errors contained therein; that they negligently defended against the Daily
News summary judgment motion and never sought leave to amend to correct vital errors in the complaint; and, that they negligently responded to the Daily News’ discovery request. They also
allege that the law firm failed to respond to their requests regarding the status of the lawsuit and to
keep them apprised of critical developments and furthermore, concealed negative facts from them.
The plaintiffs also maintain that Lefkowicz & Gottfried never told them that the Daily News had
procured summary judgment dismissing their complaint against it; that they refused to appeal from
that order; and that they never sought additional discovery documents from them even though they
were faced with a conditional order of dismissal.

The plaintiffs additionally allege that a dispute arose at a meeting on September 13 2011 between Lefkowicz, Abramowitz, Abramowitz s brother Matt and Goldberg, 23KT Gold Collectibles and Merrick Mint Ltd.’s successor attorney. More specifically, they allege that Lefkowicz attempted to leave the meeting but Abramowitz would not allow him to do so whereupon Lefkowicz allegedly pushed him and left. Abramowitz alleges that Lefkowicz then went to the police and filed a complaint swearing that he had threatened him with a gun causing him to fear for his life, which Abramowitz adamantly denies. Abramowitz alleges that he ultimately surrendered to the police where he remained in custody while the charges, Menacing in the First Degree and Harassment in the Second Degree were prepared.

The complaint fails to plead facts which would establish an attorney-client relationship
between Abramowitz and the defendants. While the plaintiffs have alleged that the defendant
represented 23KT Gold Collectibles, Ltd. and Merrick Mint Ltd. , they have not alleged facts
indicative of a relationship with Abramowitz, individually.

Merrick Mint Ltd. was not a party to the agreement with the Daily News. The defendants’ misnomer of it as a plaintiff in 23KT Gold Collectibles’ suit against the Daily News did not cause it any damages. While theoretically it could have been held responsible on the Daily News
counterclaims, the Daily News could not have established its liability. More importantly, judgment
was in fact only procured against 23KT Gold Collectibles. And, the plaintiffs have not established
that the settlement included Merrick Mint Ltd. Accordingly, Merrick Mint Ltd. suffered no damage
as a result of the defendants ‘ alleged negligence. Merrick Mint Ltd. s legal malpractice claim is
dismissed pursuant to CPLR 3211 (a)(1), (7)..

The plaintiffs ‘ have amply alleged facts establishing the defendants ‘ negligent handling of  their case against the Daily News as well as ensuing damages. Furthermore, the documentary evidence relied on by the defendants does not conclusively establish that the plaintiffs could not have prevailed on their claims against the Daily News: Issues of fact exists as to whether the plaintiffs would have prevailed against the Daily News on their claims and in defense of the Daily News counterclaims. Dismissal of the 23KT Gold Collectibles’ legal malpractice claim pursuant to CPLR 9321 1 (a)(1), (7) is denied. See, Sicilano v. Forchelli & Forchelli 17 AD3d 343 (2 Dept 2005), citing Shopsin Siben Siben 268 AD2d 578 (2 Dept 2000); see also, Pechko Gendelman, 20 AD3d 404 (2 Dept 2005).."

Legal malpractice litigagnts, as well as most other plaintiffs, would like to bring a case where they live. It’s convenient, it’s more likely favorable, and it’s easier. However, a case which took place in a neighboring state may not be proper to bring in NY. Here is an example. In Paolucci v Kamas
2011 NY Slip Op 03823 ;  Appellate Division, Second Department, plaintiff finds that the case may not be brought in NY. The AD doesn’t say, but the events leading to legal malpractice litigation took place in Kansas.
 

"Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants’ contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210). [*2]"
 

Justice Ling-Cohan writes a basic textbook of how an account stated case is decided in an attorney fee setting in Mintz & Fraade, P.C. v Docuport, Inc.  2012 NY Slip Op 30974(U)  April 11, 2012  Supreme Court, New York County  Docket Number: 603125/07  Judge: Doris Ling-Cohan.  Here the law firm loses.

"Before this court are three motions: (1) Plaintiffs motion pursuant to CPLR $321 l(5) and CPLR 5214(6), to dismiss defendant’s counterclaim of breach of fiduciary duty, upon the ground that it is time barred by the applicable 3-year statute of limitation; (2) Defendant’s cross-motion to dismiss plaintiff’s first, second, third and fourth causes of action; and (3) Plaintiffs motion pursuant to CPLR 53212 for summary judgment on the complaint and to dismiss defendant’s counterclaim.

In support of its motion to dismiss defendant’s counterclaim of breach of fiduciary duty, plaintiff
maintains that such counterclaim is barred by the three (3) year statute of limitation which applies to such a claim. In opposition, defendant argues that its counterclaim is not barred the statute of
limitations, since such counterclaim and plaintiffs claims arise from the same transactions,  occurrences or series of occurrences, namely plaintiffs provision of legal services, and thus, pursuant to CPLR §203(d), defendant may pursue its counterclaim, in the nature of recoupment or set-off against any amount plaintiff seeks to recover on its claims. This court agrees. 

Defendant’s cross-motion to dismiss is procedurally defective in that a statutory basis or dismissal is not supplied. See Rubin v. Rubin, 72 AD2d 536 (1’‘ Dept 1979); Tortorice v. Tortorice, 55 Misc 2d 649 (Sup Court, Kings County 1968); CPLR §2214(a); CPLR $321 l(e). CPLR §2214(a) specifically provides that the grounds for the relief demanded must be specified in the notice of motion, which defendant failed to do herein. Moreover, the affidavit supplied by defendant in support of its crossmotion to dismiss, asserts numerous times, that,“there exists material issues of fact.. .” regarding plaintiffs claims, conceding that dismissal is not warranted at this juncture. [Thus, defendant’s cross-motion is denied.

At the outset the court notes that, while plaintiffs notice of motion indicates that it is seeking summary judgment with respect to (1) the complaint, and (2) defendant’s counterclaim, plaintiff only argues in support of summary judgment based upon its account stated cause of action and dismissal of defendant’s counterclaim, in the moving papers. Thus, as no legal or factual basis has been supplied with respect to granting summary judgment on plaintiffs causes of action for breach of contract, unjust enrichment and quantum meruit, summary judgment is denied as to such causes of action.

As to plaintiffs cause of action for an account stated, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, since the invoices supplied in support of its claim do “not set forth [its] hourly rate, the billable hours expended, or the particular services rendered”, as required, and, thus, summary judgment is denied. Ween v. DOW3,5 AD3d 58 (1st Dept 2006). In Peen, the First Department, searched the record, to specifically find that plaintiff was not entitled to summary judgment for failing to make a prima facie showing, because the invoices submitted in support did not include counsel’s “hourly rate, the billable hours expended, or the particular services rendered”. Id. at 62; see  also Kaye, Scholer, Fierman, Hays & Handler, LLP v. L.B. Russell Chemicals, Inc,, 246 AD2d 479 ( 1st  Dept 1998); Herbert Paul, P. C. v. Coleman, 236 AD2d 268 (1‘ Dept 1997); Diamond & Golomb, P. C., 140 AD2d 183 (1 Sf Dept 1988). "

This attorney fee dispute went through the Supreme Court, the Appellate Division, Arbitration, and back to Supreme court.  In the end opposition papers were rejected, cross-motions were filed 5 hours late, and the case ended up with a big award on the attorney fees.  We wonder if they are collectible?

In Hoffinger Stern & Ross, LLP v Neuman   2012 NY Slip Op 30951(U)   April 10, 2012
Supreme Court, New York County   Docket Number: 113111/09   Judge: Louis B. York we see the Court deciding this issue.

"Plaintiff moves for partial summary judgment on its account stated cause of action, and for dismissal of defendants’ affirmative defenses, Defendants cross-move for summary judgment
dismissing plaintiffs account stated cause of action, and for dismissal of all defendants except
Philip Neuman (Neuman) from this action.
This is an action for breach of contract, account stated, unjust enrichment and quantum
meruit. According to the complaint, plaintiff served as the legal counsel for Neuman and the
other defendants, which are entities owned and or controlled by Neuman, or associates of
Neuman. Neuman retained plaintiff beginning on July 12,2006.For almost two years, plaintiff
was the legal representative of defendants in over a dozen actions in New York and New Jersey.
Plaintiff is seeking the recovery of fees for legal services performed in these actions, as well as
other work done on behalf of defendants.

Plaintiff previously brought a similar action against defendants, entitled Hoffinger Stern & Ross LLP v Neuman, et al., Index No, 105427/08 in this court. Plaintiff sought summary judgment against Neuman on its account stated cause of action. The court in that action held that, pursuant to Part 137 of the Rules of the Chief Administration (Rules), defendant had the right to arbitrate a fee dispute. The court therefore dismissed the action. Plaintiff claimed that it gave Neuman thirty days written notice of his right to seek arbitration. Neuman never filed a request for arbitration. Plaintiff thereafter brought the present suit, again seeking summary judgment on the account stated cause of action, this time against defendants, jointly and severally.

In a decision dated May 5,201 0 (the May 5,2010 decision), this court held that Neuman
had waived his right to arbitrate and could be sued in court.The court granted plaintiff summary judgment on the account stated cause of action and granted dismissal of defendants’ affirmative defenses on the ground that they were inadequately pleaded. Defendants sought a reargument and/or renewal of the May 5,20 10 decision, which was denied. However, on appeal, the Appellate Division, First Department, reversed the May 5, 2010 decision, holding that there was an issue of fact as to whether or not defendants objected to a bill  that was issued one day before plaintiff brought the first action. The dismissal of the affirmative defenses was also reversed on the ground that plaintiff would not have been prejudiced if defendants sought leave to replead.  Plaintiff is now moving again for summary judgment on his account stated cause of action, this time related to a single invoice, dated March which he allegedly sent to defendants. He seeks the amount of $654,651.

According to plaintiff, defendants’ counsel requested an adjournment, and asserted
that opposition papers would be served on plaintiff by noon on November 15,2011. The parties
thereafter executed a stipulation, which was submitted to the court, providing that defendants
agreed to waived their right to file opposition papers if they were not served by the abovesaid
time and date.

Plaintiff asserts that defendants’ counsel served plaintiff belated papers, on 4:59 p.m. on
November 15. The papers included the cross-motion, Defendants’ counsel allegedly informed
plaintiff that they were unaware of the due time. Defendants’ counsel also deny that there was a
default on their part. Plaintiff seeks to enforce the terms of the stipulation, and demands that the
cross motion and opposition papers be rejected as a matter of law.

The court finds that defendants are precluded from relying on the Grande decision. They had the option of raising this issue when they failed to make a timely cross motion pursuant to the PCO. Once they assented to the stipulation, they were bound to strictly comply with its terms. In the absence of any other assertion of good cause, defendants cannot bring their untimely cross motion. Therefore, the cross motion for summary judgment is denied. The court will consider defendants’ opposition to plaintiffs motion, as plaintiff have not been prejudiced by the delay,

Here, as in the previous motion, plaintiff raises similar arguments, though it concentrates on only one invoice, And defendants assumes the same position as previously. As the court examines the record, it finds that, with respect to the March invoice, there is no evidence of Neuman objecting or questioning the nature or amount of this invoice. The court will grant partial summary judgment to plaintiff.

In the Third Department certain types of cases seem to predominate. One such type is tax matters. This case, Dealey-Doe-Eyes Maddux v Schur ; 2011 NY Slip Op 02763 ; Appellate Division,  Third Department falls into that category. A failed tax action against Fulton County, followed by a failed legal malpractice action, followed by two later attempts to get it started once again. The question is, why and how do plaintiffs pro-se- persist?
 

"Defendant, an attorney, represented plaintiff in a tax assessment proceeding that she initiated against the Town of Oppenheim, Fulton County, during which she contends the Town was held in contempt. In 2003, plaintiff commenced this legal malpractice action against defendant alleging that he never filed an order with Supreme Court memorializing the contempt finding it issued against the Town and, as a result, was negligent in the legal representation that he provided her in that proceeding [FN1]. After plaintiff completed the presentation of her proof at trial, Supreme Court granted defendant’s motion to dismiss.

Subsequently, plaintiff filed a motion to renew (see CPLR 2221 [e]) seeking to reopen her action against defendant on the ground that she had recently received a letter from the Chief Clerk of the Supreme and County Courts in Fulton County that constituted new evidence confirming that the Town had been held in contempt in the tax assessment proceeding. Initially, [*2]Supreme Court determined that plaintiff was, in fact, not filing a motion to renew but, instead, was filing a motion to be relieved from the effects of a prior judgment (see CPLR 5015). After making that determination, Supreme Court denied plaintiff’s motion because she had failed to demonstrate that she had acted with due diligence in the discovery of this evidence and, even if it had been available at trial, plaintiff did not establish that there would have been a different result.[FN2]

One year later, plaintiff filed another motion to renew (see CPLR 2221 [e]), once again claiming that she had discovered new evidence which, if admitted at trial, would have resulted in a finding that defendant was negligent. This evidence included papers filed by defendant in support of the application seeking a contempt citation against the Town, as well as letters that plaintiff received from the Supreme and County Court Clerk’s office documenting her efforts to establish that a contempt finding had been issued against the Town. Supreme Court again converted plaintiff’s application into a motion to be relieved from a prior judgment (see CPLR 5015) and denied it because the evidence submitted by plaintiff was not new, nor would it have made a difference if introduced into evidence at trial. Plaintiff now appeals. "