Matter of Silver v Frieden
Annotate this CaseDecided on April 7, 2006
Supreme Court, New York County
In the Matter of the Application of Gloria B. Silver, as Trustee, Petitioner,
against
Thomas R. Frieden, M.D., M.P.H., As Commissioner of the Department of Health and Mental Hygiene of the City of New York, Respondent.
113749/04
Ronald A. Zweibel, J.
Respondent Thomas R. Frieden, M.D., M.P.H., as Commissioner of the Department of Health and Mental Hygiene of the City of New York (DOHMH), moves for leave to renew and reargue this Court's Decision, Order and Judgment, dated March 18, 2005 and entered May 3, 2005. The Court granted the underlying petition and annulled DOHMH's lien, finding insufficient proof of service of the five day predicate notice. DOHMH claims that the verified answer submitted in response to the petition constitutes proof as to the service of the notice. Petitioner opposes the motion to reargue and renew, pointing out that the DOHMH's verified answer did not "specifically claim that the envelope was mailed to Gloria B. Silver c/o Marin Management Corp."
"A motion for reargument is not just a repetitious application by a disappointed lawyer, who feels he ought to have as much further reconsideration as he chooses" (New York Cent. R. Co. v. Banton Corp., 110 NYS2d 64, 66 [App. Term 1st Dept. 1952]). Likewise a motion to [*2]reargue is not an opportunity "to allow counsel to rehash questions already decided" (Margulis v. Teichman, 127 Misc 2d 168 [NY Surrogate's Ct. 1985]). A motion for reargument is addressed to the discretion of the Court and is designed to afford a party an opportunity to demonstrate that the Court overlooked, misapprehended or misapplied the law or the facts pertinent to the original motion (CPLR 2221[d][2]; Andrea v. E.I. Du pont de Nemours & Co., 289 AD2d 1039, 1040-1041 [4th Dept. 2001]; Foley v. Roche, 68 AD2d 558, 567 [1st Dept. 1979]). "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided" (Foley v. Roche, 68 AD2d , at 567).
In the instant case, the issue before this Court is whether this Court improperly dismissed the petition because of lack of proof of the Five Day Notice to petitioner.
Firstly, a motion for reargument may not be premised on a brand new argument (see Rubenstein v. Goldman, 225 AD2d 328 [1st Dept.0], lv. den. 88 NY2d 815 [1996]; William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22, 27 [1st Dept.], lv. den. 80 NY2d 1005 [1992]; Foley, 68 AD2d, at 567-68). DOHMH argues that their conclusory statement that the Five Day Notice was properly mailed has the force of an affidavit because they were sworn to as truthful by Margaret Jung, Director of DOHMH's Office of Revenue/Pest Control Research and Billing Unit, who DOHMH alleges is an employee with first-hand knowledge of the facts stated in the Verified Answer. As DOHMH states, the Verified Answer, noted that "[t]he records of DOHMH indicate that the [five-day order] was not returned by the U.S. Postal Service, and that neither petitioner nor her agent contacted DOHMH to protest the [five-day order.]" What the Verified Answer did not state was who mailed it, when it was actually mailed, the address it was actually mailed to as the "FAIRTAX" address form lists three addresses and that it was actually mailed in accordance with the ordinary practice of the office. Additionally, the Verified Answer did not detail the DOHMH's ordinary business practices with respect to mailing such Notices. In fact, it is not until the instant motion to reargue and renew that Margaret Jung sets forth the basis of her knowledge and DOHMH's ordinary procedures for mailing notices from which she concludes from the file that the Notice was properly addressed and mailed on March 24, 2003. She does not claim to have been the person to have allegedly prepared the Notice for mailing or to have followed through on those procedures nor does she name the employee who actually dealt with the mailing.
Silver and a representative of Marin Management Company, on the other hand, put in two sworn affidavits denying receipt of the notice.
Normally, service by mail is deemed complete pursuant to CPLR 2103 when, as here, a properly stamped and addressed letter is delivered to the custody of the Untied States Post Office (see St. Clare's Hospital v. Allcity Insurance Company, 201 AD2d 718, 719 [2d Dept. 1994]). A properly executed affidavit of service raises a presumption that a proper mailing occurred (see St. Clare's Hospital v. Allcity Insurance Company, 201 AD2d, at 719; Engel v. Lichterman, 62 NY2d 943 [1984]). The mere denial of receipt is insufficient to rebut the presumption of delivery (see St. Clare's Hospital v. Allcity Insurance Company, 201 AD2d, at 719). However, there is no presumption of mailing. Upon reconsideration, the Court concludes that the sworn denial by Silver and her agent of receipt by mail of the Five Day Notice requires a hearing to determine whether the Notice had in fact been mailed. Here there is no affidavit of service from someone with personal knowledge. DOHMH is relying on the affidavit of Margaret Jung [*3]annexed to its Motion to Reargue and Renew, who certifies that the Notice was mailed basically on a review of the file, conversations with unnamed people at DOHMH and the usual mailing procedures followed by DOHMH with respect to these Notices. "And, there is no presumption at all absent proof of mailing in an envelope properly addressed and stamped" (see Uni-Serv Corporation v. Frede, 50 Misc 2d 823, 824 [Civil Ct. N.Y.CO. 1966], aff'd 53 Misc 2d 644 [App. Term 1s Dept. 1967]).
Accordingly, because the Court granted the underlying motion without first conducting a hearing on this issue, the instant motion to reargue is granted to the extent that a hearing is ordered on the issue of whether the Five-Day Notice was mailed.
Additionally, in order to have a more complete record for purposes of appeal, the Court will conduct an Article 78 hearing with respect to the issues underlying the original motion to discharge the lien.
As to the motion to renew, this Court notes that this is not a motion to renew as it is not based upon additional material facts which existed at the time the prior motion was made, but which were not made known to the party seeking leave to renew and therefore not made known to the Court (see Foley v. Roche, 68 AD2d, at 568; see also Beiny v. Wynard, 132 AD2d 190, 209-10 [1st Dept. 1987], app. dism. 71 NY2d 994 [1988]; Silverman v. Leucadia, Inc., 159 AD2d 254, 255 [1st Dept. 1990]). Motions to renew are rarely granted (see Beiny v. Wynard, 132 AD2d, at 210). The Court may grant such motions only where there is a valid excuse for the movant's failure to submit these "new" facts at the time of the original motion (see Beiny v. Wynard, 132 AD2d, at 210; see also CPLR 2221[e][3]). Here there are neither new facts nor a valid excuse for not bringing them to the Court's attention. Moreover, because under New York law, a motion to renew will not be granted if it is based on a "new" document, unknown to the movant, that merely incorporates facts that were previously raised, the instant motion to renew must be denied (see e.g. Orange and Rockland Utilities, Inc. v. Assessor of the Town of Haverstraw, 304 AD2d 668, 669-70 [2nd Dept. 2003]; Brooklyn Welding Corp. v. Chin, 236 AD2d 392 [2nd Dept. 1997]; Kassis, 182 AD2d, at 27).
Even were this Court to consider the instant motion as one to renew, based on additional material facts not previously before the Court, this Court would still deny this portion of the motion based on the movant's failure to offer a valid excuse for not submitting the additional facts upon the application (Foley v. Roche, 68 AD2d, at 568).
Accordingly, the motion to reargue is granted to the extent that a hearing is Ordered on the issue of whether the Five Day Notice was properly mailed.
The parties are directed to contact each other within 14 days of receipt of this Order and work out potential dates for the hearing that are convenient for both sides and then they are to contact the Court to arrange the actual date for the hearing. This constitutes the Decision, Order and Judgment of this Court.
ENTER:
Hon. Ronald A. Zweibel, J.S.C.
Dated: April 7, 2006
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