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Unfavorable Decisions: Differences Between a Motion to Renew/Reargue or Appeal

When a party receives a Decision or Order that they do not agree with,

s/he has options. Two of those options are: 1) to file a motion to renew and/or

reargue pursuant to CPLR§2221, or to appeal to the Appellate Division of the

appropriate judicial department.

Two motions are filed with the same court that issued the unfavorable

decision. A motion to renew must be "based upon new facts not offered on the

prior motion that would change the prior determination". There is no time

limit for the filing of a motion to renew, as opposed to an appeal, which must

be filed 30 days from the service of a Notice of Entry of a Decision or Order.

However, a litigant seeking to file a motion to renew must provide the court

with a "reasonable justification for the failure to present such facts on the prior

motion". A motion to reargue is a little more forgiving, and, some may say, a

second bite at the proverbial apple, being "based upon matters of fact or law

allegedly overlooked or misapprehended by the court in determining the prior

motion, but shall not include any matters of fact not offered on the prior

motion." In the context of a motion to reargue, the litigant has the opportunity

to advise the court why they made the wrong call, but said motion must be

filed within 30 days of the service of the notice of entry of the original order

and must be based upon the information contained within the 4 corners of the

underlying motion.

Motions to renew and reargue are ultimately reviewed and decided by

the same court, and most likely the same judge, that decided the original

application. Essentially, a litigant tells the Court that it issued its decision in

error and demands a different result. Such motions follow a regular briefing

schedule, and are decided within 60 days of submission of the papers.

Conversely, an appeal to the appellate division has a much longer turnaround

time, and could potentially result in the total resolution of the lower court

matter prior to the issuance of a decision on the matter appealed from. Appeals

are costly and require expertise of an attorney well versed in appellate

procedure, which varies significantly from the procedures of the lower courts.

However, the benefit of an appeal is that an appeal is decided by a panel of

appellate judges who did not decide the issues in the lower court. These

appellate judges have substantial discretion to review the issues (both raised

and unraised) on appeal and made a brand new decision on the case.

The decision of how to address an unfavorable decision should be

discussed with an experienced attorney.

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