Wednesday, February 17, 2016


A decision from the New York Appellate Division for the First Judicial Department

Although the deposition testimony submitted on renewal is not cumulative of the evidence presented on defendant’s original motion, it would not have changed the motion court’s original determination (see Cammeby’s Equity Holdings LLC v Mariner Health Care, Inc., 106 AD3d 563, 564 [1st Dept 2013]; CPLR 2221[e][2]). While the statement by plaintiff’s counsel that both sides had equal access to ADP, the company’s payroll administrator, is not strictly true, it is not materially false. It is true, as the subsequent deposition testimony makes clear, that plaintiff and her assistant had telephone access and higher administrative and security powers than defendant and his team. However, the gravamen of the underlying dispute is whether the parties each had access to the ADP payroll system, which is accessed through the Internet; the deposition testimony establishes that they did. In the absence of a material misstatement of fact, the motion court providently exercised its discretion in denying the motion to renew defendant’s motion for sanctions (see Elting v Shawe, 129 AD3d 648, 649 [1st Dept 2015] [holding that sanctions were not warranted where a different misstatement by plaintiff and her counsel was not material]). Because the misstatement is not material, there is no need to consider whether the motion to renew should be granted to avoid substantive unfairness (see Tishman Constr. Corp. of N.Y. v City of New York, 280 374, 377 [1st Dept 2001]).

(Mike Frisch)

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