Respondent Manhattan Mini Storage ("MMS") moves, pursuant to CPLR 2221(e), for an order granting leave to renew the court's decision and order dated April 9, 2010, which granted the petition to the extent of referring the issue of the amount of damages to petitioner Marguerite A. Lewitin ("Lewitin") resulting from the improper sale of her property to a Special Referee. Lewitin opposes the motion, which is denied for the reasons below.

Petitioner commenced this proceeding to vacate the sale of her personal property stored in MMS's storage facility or for a judgment against respondent for the value of her property. Under Lewitin's contract with MMS, Lewitin stored her personal property with MMS in exchange for a monthly fee of $802. From May to August of 2009, Lewitin failed to pay the monthly fee. MMS sent a notice to Lewitin dated June 26, 2009, stating that an outstanding balance was due and failure to pay the balance would result in the sale of her property on August 26, 2009. The sale of Lewitin's property was conducted on August 26, 2009, and the property was sold to a "Joe P" for the sum of $2,900.

In the petition, Lewitin contended that she never received a notice of sale from MMS and admits to receiving only one phone call from MMS on August 30, 2009, which she returned on September 2, 2009. At that time, she was informed that her property had been sold but not yet transferred to the purchaser. Lewitin immediately filed an Order to Show Cause to vacate the sale pursuant to section 7-210 of the Uniform Commercial Code and served it upon MMS on September 3, 2009. The Order to Show Cause stayed the transfer or removal of Lewitin's property. Lewitin's attorney subsequently was informed, however, that her property had been turned over to the purchaser.

MMS opposed the application, asserting that as self-service storage facility as defined under section 182(1)(a) of New York's Lien Law, it had a lien of Lewitin's property under Lien Law section 182(6)^[FN1] due to Lewitin's failure to pay monthly occupancy charges. Additionally, [*2]MMS asserted that it properly enforced the lien by a public sale and provided proper notice to Lewitin by certified mail in accordance with section 15 of the contract and section 182 of Lien Law. In support of this position, MMS attached a copy of the notice sent to Lewitin and an electronic return receipt indicating that the delivery was made by certified mail to Lewitin's address and delivered on July 17, 2009.In response, Lewitin argued that she was not properly notified of the sale of her personal property, and cited Lien Law § 182, which states that a notice of sale must be "personally delivered . . . or sent by registered mail or certified mail, return receipt requested." She also noted that section 15 of her contract with MMS provides for service of notices by certified mail, return receipt requested. Lewitin argued that while MMS sent the mail via certified mail, it did not request the return receipt as required by statute, and noted that MMS's document showing proof of delivery shows that the item was marked "delivered" to a zip code different from her own.

In the original decision, the court found that while MMS had a lien on Lewitin's property and that Lewitin owed MMS for unpaid occupancy fees, that MMS had not properly served with notice under section 182(7)^[FN2] which provides for the enforcement of a lien upon stored property upon notice. That provision requires, in relevant part, that the notice "be personally delivered to the occupant or sent by registered or certified mail, return receipt requested, to the occupant at [*3]the last address provided by the occupant, pursuant to the occupancy agreement." The court wrote that:

Here, the record is clear that MMS failed to comply with the mailing requirements set forth in Lien Law § 182. While the notice of sale was sent via certified mail, it was not sent return receipt requested. The return receipt function allows the sender to obtain a copy of the signature of the addressee or addressee's agent, date delivered and the address of delivery. L & J Plumbing & Heating Co., v. Gateway Demolition Corp., 176 Misc 2d 277, 278 (NY Sup Ct 1998). MMS has submitted proof of delivery in what appears to be an electronic return receipt, but this document lacks the signature of the addressee and indicates that the mailing was delivered to a different zip code. There is no indication that Lewitin would have received such a mailing.

The court then concluded that as MMS failed to comply with notice requirements, but the sale of the property has already occurred, the remedy was for Lewitin to seek damages resulting from the improper sale of her property, but noted that any damages could be offset by the amounts owed to MMS. See Matter of Anderson v. Pods, Inc., 70 AD3d 820 (2nd Dept 2010) (where the sale of petitioner's goods was not properly noticed under Lien Law § 187, defendant was liable for damages resulting from said sale). The court then referred the issue as to the amount of damages to Special Referee to hear and report with recommendations.

MMS now moves for renewal, based on an "investigation" conducted with respect to the procedures of the U.S. Postal Service as to whether "electronic return receipt requested was is the same or different from a certified mailing, return receipt requested and what the electronic tracking information meant." The results of the investigation are set forth in an affidavit of Courtney J. Killelea, Esq., who conducted the investigation for the firm representing MMS, and concluded after reviewing the post office website that "the electronic return receipt is the functional equivalent of mailed return receipt" (Killelea Affidavit, ¶8). She also states that her investigation revealed that Lewitin retrieved the notice at the post office on July 17, 2009.

This statement is based on the electronic receipt previously submitted by MMS in opposition to the petition, and statements made to Killelea by Postal employees.

In opposition, Lewitin argues that leave to renew should be denied as the motion is based solely on MMS's failure to exercise due diligence in obtaining the evidence at the time that the petition was submitted, and that, in any event, the evidence relied on by MMS is insufficient to provide a basis for changing the original decision, since such evidence does not demonstrate that MMS complied with the Lien Law which requires that a notice of sale be sent by certified mail return receipt requested. Lewitin also notes that the statements from Postal employees constitute hearsay and should not be considered by the court.

"A motion for leave to renew is intended to bring to the court's attention new facts or additional evidence which, although in existence at the time the original motion was made, were unknown to the movant and were therefore not brought to the court's attention." Tishman Constr. Corp. of New York v. City of New York, 280 AD2d 374, 376 (1st Dept 2001)(citations omitted). A motion for leave to renew should be denied when the movant fails to show that it exercised due diligence in obtaining to obtain the evidence before the submission of the original application ( Taub v. Art Students League of New York, 63 AD3d 630, 631 [1st Dept 2009]), or [*4]in the absence of a valid excuse for not submitting the additional facts previously. Elson v. Defren, 283 AD2d 109, 113 (1st Dept 2001)(holding that renewal should be denied in absence of a valid excuse for not submitting additional facts at the time of the original motion).

Here, MMS proffers no valid excuse for not conducting an investigation with regard to the service of the notice of sale at the time of the original petition, and leave for renewal should thus be denied. Furthermore, even if the court were to grant renewal, it would not change the prior determination that the notice of sale was not properly served. Lien Law §187(7) requires that the notice of sale "be personally delivered to the occupant or sent by registered or certified mail, return receipt requested." In this case, there is no dispute that the notice was not served by these methods, and MMS's assertion that the method used, that is service by "electronic return receipt," is the functional equivalent of certified mailed return receipt is unavailing as the statute does not permit this method of service.^[FN3]

In view of the above, it is

ORDERED that the motion to renew is denied.

DATED: November 22, 2010

J.S.C.