Plaintiff commenced this small claims action to recover $5,000.00 for failure to pay rent arrears and for damages allegedly caused to plaintiff's real property. A trial was held on March 16, 2011. By Decision and Order dated March 23, 2011, this Court awarded judgment to plaintiff in the amount of $3,500.00. The Court noted in its decision that neither party submitted written documentation.

Plaintiff now moves to renew on the basis that he is able to present new evidence. Plaintiff has attached Home Depot invoices from January 2010 totaling $1,507.37 and a "Job Invoice" from Sherrieff Thomas in the amount of $1,100.00 dated January 6, 2010. Plaintiff further argues that defendant owes him rental arrears for twelve months and not nine months rent.

A motion to renew is based upon additional material facts which existed at the time the prior fact finding procedure was made but which were not made known to the court" (F & G Heating Co. Inc. v Bd of Education, 103 AD2d 791 (2d Dept. 1984)). The requirement that a motion for renewal be based on newly discovered facts is a flexible one, since a court may in its discretion grant renewal upon facts known to the moving party at the time of the original action (Weisser v Park Lane Foods, Inc., 202 AD2d 496 (2d Dept. 1994); Saferstein v Stark, 171 AD2d 856 (2d Dept. 1991); Oremland v Miller Minuteman Constr. Corp., 133 AD2d 816 (2d Dept. 1987)). Renewal, however, is by no means guaranteed and is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (Barnes v. State of New York, 159 AD2d 753 (3rd Dept 1990)). [*2]

Based upon the submissions on this motion, plaintiff's motion to renew is denied. Plaintiff has offered no reasonable justification for his failure to present the invoices at trial (Good Samaritan Hosp. Med. Ctr. v Ruscito, 287 AD2d 538 (2d Dept 2001); Cole-Hatchard v Grand Union, 270 AD2d 447 (2d Dept 2000)).

Motion denied.

This constitutes the Decision and Order of the Court.

AS/akb

Dated:May 17, 2011

Mount Vernon, New York

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HON. ADAM SEIDEN

Associate City Judge of Mount Vernon