Guillet v Willard

[*1] Guillet v Willard 2009 NY Slip Op 50372(U) [22 Misc 3d 1130(A)] Decided on January 30, 2009 Supreme Court, Monroe County Stander, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2009
Supreme Court, Monroe County

Ernest G. Guillet, Rebecca Guillet, Alyson Guillet, and Virginia Guillet, Individually and as the Executrix of the Estate of Ernest G. Guillet, Sr., Plaintiffs,

against

J. Peter Willard, Linda Del Monaco Willard, Joseph J. Scibetta, and Stephan R. Sanko, Defendants.



2007/00999



Attorney for Plaintiffs:

Glenn E. Pezzulo, Esq.

Culley, Marks, Tanenbaum & Pezzulo, LLP

36 West Main Street, Suite 500

Rochester, New York 14614

Attorney for Defendants

J. Peter Willard and

Robert L. Brenna, Jr., Esq.

Linda DelMonaco Willard:

Brenna, Brenna & Boyce, P.C.

31 East Main Street

Liberty Plaza, Suite 2000

Rochester, New York 14614

Attorney for Defendant

Joseph J. Scibetta:

Mark K. Broyles, Esq.

Relin, Goldstein & Crane, LLP

28 East Main Street, Suite 1800

Rochester, New York 14614

Attorney for Defendant

Stephan R. Sanko:

Peter J. Weishaar, Esq.

McConville, Considine, Cooman & Morin, P.C.

25 East Main Street

Rochester, New York 14614-1874

Thomas A. Stander, J.

DECISION and ORDER

Thomas A. Stander, J.

The Plaintiffs, Ernest G. Guillet, Rebecca Guillet, Alyson Guillet and Virginia Guillet, Individually and as the Executrix of the Estate of Ernest G. Guillet, Sr. (collectively "Guillet"), submit this motion seeking an Order directing Defendants, J. Peter Willard, Linda DelMonaco Willard, Joseph J. Scibetta, and Stephan R. Sanko to pay Plaintiffs' Attorneys' Fees incurred in the prosecution of this action. The application seeks an Order directing Defendants to pay to Plaintiffs the amount of $41,108.05 for attorneys fees and expenses.

The Defendants, J. Peter Willard and Linda DelMonaco Willard, submit a cross-motion requesting (1) an Order granting leave to reargue, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property; and (2) an Order denying Plaintiffs' application for counsel fees and expenses in the amount of $41,108.05.

This action was commenced by Plaintiffs for breach of a Settlement Agreement and Amendments; for conversion; for unjust enrichment; for breach of fiduciary duties; for breach of Partnership Agreements; and for Attorneys' Fees. The Defendants state cross-claims in their pleadings. The parties hereto have an extended history of being involved together in businesses and business transactions. After numerous lawsuits were pending among the parties and after extensive negotiations, the parties entered into a Settlement Agreement on November 7, 2003. As there were various issues that arose in the implementation of the Settlement Agreement, the parties entered into "Amendment No. 1 to Settlement Agreement" on October 1, 2004 and then entered into "Amendment No. 2" to Settlement Agreement on January 1, 2005 (collectively "Amendments"). The business dealings of the parties are complex and intertwined. A Decision and Order, filed June 23, 2008, among other determinations, granted partial summary judgment to the Plaintiffs against the Defendants on various claims and causes of action.

The Plaintiffs' motion for an Order directing Defendants to pay attorney fees is in direct response to the terms of the Order filed June 23, 2008. The Order grants summary judgment to Plaintiffs on its [*2]claim to recover reasonable attorneys fees as the prevailing party in the litigation for breach of contract. The Decision and Order state "[f]or the Court to determine, in its discretion, the amount of reasonable attorneys fees, Plaintiffs must submit an application for attorney fees within thirty days of receipt of this decision, on notice to all other counsel."

As the Plaintiffs current motion to direct attorney fees be paid by Defendant is based upon the prior Decision and Order, procedurally this Court must first determine the Defendants cross-motion for leave to reargue the prior motion.

MOTION FOR LEAVE TO REARGUE

The Defendants, J. Peter Willard and Linda DelMonaco Willard, submit a cross-motion requesting an Order granting leave to reargue the motions decided by Decision and Order filed June 23, 2008, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property.

The Civil Practice Law and Rules permits a motion for leave to reargue:

A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be 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; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. . . .

(CPLR Rule 2221(d); see Andrea v E.I. DuPont de Nemours & Co., 289 AD2d 1039 [4th Dept. 2001]). A party cannot raise new questions, advance new arguments, or assume a position inconsistent with that taken on the original motion (see Foley v Roche, 68 AD2d 558, 568 [1st Dept. 1979]). "The motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted [citation omitted]" (Mayer v National Arts Club, 192 AD2d 863 [3rd Dept. 1993]).

A.Time to File a Motion for Leave to Reargue

The Decision and Order granting partial summary judgment is dated June 18, 2008 and was filed on June 23, 2008. A Notice of Appeal was filed August 1, 2008. This cross-motion for leave to reargue is dated September 4, 2008 and filed September 5, 2008.

i.Statutory Time Frame

A motion for leave to reargue shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. The Willard Defendants do not submit any evidence to demonstrate that this motion to reargue was made within the 30 day time period [*3]required by CPLR §2221(d)(3). In fact, in its cross-motion the Willard Defendants seem to concede that the cross-motion is untimely as they submit arguments as to why the Court should not find the motion for leave to reargue untimely. From the evidence presented and the position taken by the Willard Defendants, service of the Order was made sometime prior to August 1, 2008 and the motion for leave to reargue was filed September 5, 2008.

The motion to reargue was not made within the 30 day statutory period. There is no motion for an extension of time to file the motion for leave to reargue and no attempt to show good cause for the delay in filing the motion (CPLR §2004).

ii.Common Law Argument

Defendants argue that in the interest of judicial economy the Court should reject any claims that this motion is untimely. Defendants rely on Millson v Arnot Realty Corp., 266 AD2d 918 [4th Dept. 1999]) to assert that if a notice of appeal has been timely filed, and is imperfected, then a motion for reargument may be allowed after the 30 day time limit of CPLR §2221(d)(3) has expired (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636 [2d Dept. 2005]; Garcia v The Jesuits of Fordham, Inc., 6 AD3d 163, 165 [1st Dept. 2004]). Defendants submit that timely Notices of Appeal have been filed and the appeal is pending, thus reargument should be allowed after the 30 day time period has expired.

The legislature clearly states in CPLR §2221(d)(3) that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order." The statute does not set forth any exception to this 30 day time period related to the filing of a Notice of Appeal. This Court agrees with the reasoning set forth in Kern v City of Rochester and Williams v Church of the Transfiguration to conclude that Millson was determined under the prior provisions of CPLR §2221 which did not contain a specific statutory time limitation for making a motion to reargue (Kern v City of Rochester, 3 Misc 3d 948 [Monroe Cty 2004] and Williams v Church of the Transfiguration, 7 Misc 3d 553 [Queens Cty 2004]). The conclusions reached in Millson that reargument is allowed if a timely notice of appeal is filed is not applicable in this case because the legislature has now specifically defined the time period for making a reargument. The Defendant was required to comply with the statutory time period of 30 days to make a motion for leave to reargue.

The Court recognizes that it has discretion pursuant to CPLR §2004 to extend the time fixed by statute "upon good cause shown" (CPLR §2004; Itzkowitz at 638; Garcia at 165). The Defendant has not presented sufficient evidence to establish good cause for this Court to extend the time to move for leave to reargue. The Court declines to exercise its discretion to extend the 30 day time period for seeking leave to reargue.[FN1]

CONCLUSION [*4]

The motion of the Defendants, J. Peter Willard and Linda DelMonaco Willard, requesting an Order granting leave to reargue, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property, is DENIED.

The motion of the Plaintiff for an Order directing Defendants, J. Peter Willard, Linda DelMonaco, Willard, Joseph J. Scibetta, and Stephan R. Sanko to pay Plaintiffs' Attorneys' Fees incurred in the prosecution of this action is ADJOURNED to February 20, 2009 for a return date on SUBMITTED PAPERS. The Court has received the motion and opposition papers, any Reply papers are due by February 13, 2009.

ORDER

Based upon all the papers submitted in support and in opposition to these motions, upon the above Decision, and after due deliberation, it is hereby

ORDERED that the motion of the Plaintiffs, Ernest G. Guillet, Rebecca Guillet, Alyson Guillet and Virginia Guillet, Individually and as the Executrix of the Estate of Ernest G. Guillet, Sr., seeking an Order directing Defendants, J. Peter Willard, Linda DelMonaco Willard, Joseph J. Scibetta, and Stephan R. Sanko to pay Plaintiffs' Attorneys' Fees incurred in the prosecution of this action in the amount of $41,108.05 for attorneys fees and expenses is ADJOURNED for a return date on submitted papers to February 20, 2009, it is further

ORDERED that the cross-motion of the Defendants, J. Peter Willard and Linda DelMonaco Willard, for an Order granting leave to reargue, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property is DENIED.

Dated:January 30, 2009

Rochester, New York

________________________________________

Thomas A. Stander

Supreme Court Justice Footnotes

Footnote 1:Without discussing the details of the Settlement Agreement, the Court notes that Defendants now owe Plaintiff the money in dispute pursuant to other time related provisions of the Settlement Agreement and Amendments.