Concerning filing motions to reargue and motions to renew

 

In this decisions the Appellate Division explains that "[n]o appeal lies from the denial of a motion to reargue (see Budin v Davis, 172 AD3d 1676, 1679 [2019]) and, therefore, the only issue before it in its considering this action was the propriety of the Supreme Court's denial of petitioner's motion to renew. 

In this regard, said the court, "[a] motion to renew must be based on new facts not previously offered that would change the prior determination and must contain a reasonable justification for the failure to present such facts on the original motion."

A motion to renew, opined the Appellate Division, is not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance, and the denial of a motion to renew will be disturbed only where it constituted an abuse of the trial court's discretion" (Walden v Varricchio, 195 AD3d 1111, 1114 [2021] [internal quotation marks and citations omitted]; see Williams v Annucci, 175 AD3d 1677, 1679 [2019]). 

Accordingly, the Appellate Division concluded that there no abuse of that discretion on the part of the lower court.

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An effort recover damages for alleged employment discrimination dismissed as untimely

The Appellate Division sustained a Supreme Court decision that, in effect, denied the plaintiff's motion to vacate an order dated September 29, 2016, on the ground that the plaintiff failed to make the motion within a reasonable time, and also denied the plaintiff's motion for leave to enter a default judgment.

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Determining if an employer-employee relationship exists between the parties

Citing Matter of Mayo [Epstein-Commissioner of Labor], 193 AD3d 1199, the Appellate Division opined that the Unemployment Insurance Appeal Board's determination concerning the existence of an employer-employee relationship with respect to the parties involved will be sustained if supported by substantial evidence in the record and determined by considering all aspects of the working arrangement including, but not limited to, "the key question of whether the putative employer exercised control over the results produced by the worker or the means used to achieve the results." 

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Reviewing an administrative decision denying an application for accidental disability retirement benefits by the New York State Employees' Retirement System

Citing Matter of Verille v Gardner, 177 AD3d 1068, the Appellate Division confirmed a decision of the New York State Comptroller denying a member of the New York State Employees' Retirement System application for accidental disability retirement [ADR] benefits, explaining that an applicant for ADR bears the burden of showing that his or her "incapacitation from the performance of his [or her] duties was the natural and proximate result of an accident or a disability that was sustained in such service."

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