Corsell v. Corsell

¶1dissents in a memorandum as follows: Justice Martin Evans denied a motion by the plaintiff wife for exclusive possession of the marital premises. Thereafter, feeling that a different state of facts had arisen, the plaintiff renewed her motion for exclusive possession. This motion came before Justice Gomez who granted it. I find this to be in contravention of CPLR 2221 which expressly requires a renewal motion to be referred to the Judge who signed the original order (see, also, Begler v Saltzman, 53 AD2d 578; Rosenstiel v Rosenstiel, 24 AD2d 952; Matter of Fili v Fili, 27 AD2d 908). By its affirmance here the majority seems to suggest that a subsequent motion need not be referred when a different state of facts has arisen since the original motion. If that be the case then I would note that a motion brought about by the arising of a different state of facts is by definition a motion to renew the prior motion (Riggs v Pursell, 74 NY 370; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2221.03). I would reverse and remand the motion to renew to Justice Evans.