This is an application by the objectant, Serafina Kiernan, made by order to show cause, for leave to reargue and/or renew this court's decision dated August 10, 2006. In that decision (Dec. No. 431) this court granted petitioner's motion to dismiss the objections to probate and admit the will to probate. A decree was noticed for settlement on October 6, 2006. In this application it was ordered on October 10, 2006 that the probate decree not be entered pending hearing and determination of this motion to renew and reargue.

The prior decision of this court granted the motion to dismiss the objections because of the willful and contumacious conduct of the objectant inferred from repeated refusals to comply with discovery requests and orders and the absence of any adequate explanation for the failure to comply (CPLR 3126).

Motions for leave to reargue and/or renew are governed by CPLR 2221. A motion for leave to reargue and a motion for leave to renew must be specifically identified as such motions (CPLR 2221[(d)][(1)]; 2221[(e)][(1)]. A combined motion for leave to reargue and leave to renew must identify separately and support separately each item of relief sought and the court decides each part of the motion as if it were separately made (CPLR 2221[f]). A motion for leave to reargue is based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221 [d][2]). A motion to renew is based upon new facts not presented on the prior application that would change the prior decision and which contains a reasonable justification for the failure to present such facts on the prior motion (CPLR 2221[e][2], [3]).

A motion to renew must be based upon facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e][2]). In this matter the fact that some law office failures may have been responsible for the inability to reschedule objectant's deposition would not change this court's prior determination. The key to the court's determination that objectant's [*2]conduct was willful and contumacious was the objectant's noncompliance with a court order for a pretrial conference on April 26, 2006. If objectant or her counsel had appeared on that date or responded to petitioner's correspondence before that date, rescheduling could have been accomplished. Being on trial is not an excuse for failure to communicate with the court or your adversary.

Additionally a movant on a motion to renew must demonstrate a reasonable justification for not placing such alleged additional facts before the court on the original motion (CPLR 2221 [e][3]). The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application (Winogrod v Neiman Marcus Group, 11 AD3d 455 [2d Dept 2004]; Seltzer v City of New York, 288 AD2d 207 [2d Dept 2001]; Delvecchio v Bayside Chrysler, 271 AD2d 636 [2d Dept 2000]). Here, where the movant has not advanced any argument to support a claim of reasonable justification as to why the facts presented by Mr. Bloom and Mr. Lite could not have been presented to the court on the prior motion, the mandatory language of CPLR 2221 [e][3] requires denial of the motion (Siegel, McKinney 2000 Practice Commentary to CPLR 2221, C: 2221.9). First Department cases suggesting that the 1999 amendments to CPLR 2221 adding section (e), subsection 3 do not divest the court of flexibility in granting motions to renew despite the absence of reasonable justification are not binding on this court. (see, e.g., Mejia v Nanni, 307 AD2d 879 [2003]). Thus objectant's reliance on older First Department cases that the court may in its discretion grant renewal upon facts known to the moving party at the time of the original motion, is misplaced.

For all of the above reasons, the motion for leave to renew is denied.

It is a basic principle that a movant on reargument must show that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (Andrea v E.I. du Pont de Nemours & Co., 289 AD2d 1039 [4th Dept 2001]; Bolos v Staten Island Hosp., 217 AD2d 643 [2d Dept 1995]; Schneider v Soloway, 141 AD2d 813 [2d Dept 1988]). A motion to reargue is not to be used as a means in which an unsuccessful party is permitted to argue again the same issues previously decided (Pahl Equipment Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 AD2d 971 [1st Dept 1984]). Nor does it provide an unsuccessful party with a second opportunity to present new or different arguments from those originally asserted (Giovaniello v Carolina Wholesale Office Machine Co., Inc., 29 AD3d 737 [2d Dept 2006]; Gellert & Rodner v Gem Community Mgt., 20 AD3d 388 [2d Dept 2005]; Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434 [2d Dept 2005]; Amato v Lord & Taylor Ins. Co., 10 AD3d 374 [2d Dept 2004]; Frislinda v X Large Enterprise, 280 AD2d 514 [2d Dept 2001]; Foley v Roche, 68 AD2d 558 [1st Dept 1979]). Nevertheless, " [i]t is well settled that a motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts and/or the law or mistakenly arrived at its earlier decision" (Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3rd Dept 1999]). "Additionally, even in situations where the criteria for granting a reconsideration motion are not technically met, courts retain flexibility to grant such a motion when it is deemed appropriate" (Louis v S&W Realty Corp., 16 AD3d 729, 730 [3d Dept. 2005]). Objectant now claims that the court [*3]misapprehended the relevant facts and relied upon several allegations of petitioner that were untrue. She also argues that the court misapplied controlling principles of law and imposed the harshest penalty under CPLR 3126, alleging that many of the delays in this proceeding were beyond her control.

Objectant again claims that her change of counsel was not a dilatory tactic and the court wholly ignored her affidavit and that of her former counsel, Elliot Bloom, Esq., in which she claims to have changed counsel because of her dissatisfaction with delays in this proceeding and the legal costs she was incurring in the process. She also asserts that the court's reliance on two criminal cases concerning dilatory tactics was unwarranted based on the facts of those cases. Moreover, the only alleged disruption of this case was objectant's former counsel's failure to appear on April 26, 2006 for a court-ordered pretrial conference.

Objectant also claims that in granting the motion to dismiss under CPLR 3126, the court misapplied the law favoring a strong public policy of determining cases on the merits, and that the drastic remedy of dismissal for failure to comply with a disclosure order must be the result of willful, contumacious and bad faith conduct. Dismissal of the objections it is argued was an abuse of the court's discretion under CPLR 3126 and a less severe punishment such as monetary sanctions or a conditional order would have been more appropriate.

It is also claimed that the court misapprehended the facts when it concluded in its prior decision that objectant failed to conduct any discovery other than SCPA 1404 examinations in three years since she filed objections. Objectant again points out, as she did in her reply to the previous motion, that she issued subpoenas for medical records, supplied a witness list and a supplemental witness list, and engaged in document discovery regarding decedent's assets. It is further claimed that objectant should not be punished for the oversights of her former attorneys as she never instructed them to delay the proceeding and thus it would be manifestly unjust for her to be personally responsible for the law office failures of her prior counsel to appear at conferences. Monetary sanctions could have been imposed against prior counsel rather than dismissal of her objections.

Finally, it is claimed that there is no evidence of an intent to abandon her objections, an inference she asserts that the court appears to have engaged in by her not complying with the court's pretrial order. It is asserted that failure to reschedule depositions is not an abandonment of her objections. Additionally, she argues that many of the cases relied upon by the court in the prior decision are inapposite to the facts in this proceeding because in those cases the court found a party's conduct to be willful and contumacious from repeated failures to respond to demands and court directives to comply with such demands coupled with inadequate explanations. Here it is claimed that there were no refusals to comply with discovery requests or orders, there was an adequate explanation for the adjournment of her deposition (a death in the family) and the court could have easily rendered an order directing that objectant be deposed within a specified time or on a date certain.

In view of the strong public policy of resolving cases on the merits (Matter of Pingpank, 134 AD2d 263 [2d Dept 1987]) and the court's discretion in granting a motion for reargument, the objectant's motion for reargument is granted. Upon reconsideration, the court reverses its prior determination striking the objectant's objections. The court, however, is mindful of the objectant's dilatory conduct. Accordingly, the motion to dismiss the objections is granted unless [*4]Serafina Kiernan appears and submits to her deposition in this court on March 19, 2007 at 10:00 a.m. and, if this deposition is not completed on that day, at 10:00 a.m. on each subsequent day thereafter until her deposition is completed. A conference is scheduled for March 26, 2007 at 10:00 a.m. at which all parties and their respective counsel are directed to appear.

This constitutes the decision and order of the court.

Dated: March 7, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court