Fried v Tucker

[*1] Fried v Tucker 2009 NY Slip Op 52259(U) [25 Misc 3d 1223(A)] Decided on September 14, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2009
Supreme Court, Kings County

Aron Fried, Plaintiff,

against

Philp Tucker and EDITH TUCKER, RENNIE TUCKER N.Y.C. DEPT. OF FINANCE, ET AL., Defendants.



9043/08



For Plaintiff:

Kenneth Glassman

475 Park Ave South Suite 700

New York, NY 10016

212-213-2510

For Defendant:

The Billah Law Firm

85 Worth Street, 5th floor

New York, NY 10013

Francois A. Rivera, J.

By notice of motion filed on July 29, 2009, under motion sequence number five, defendants Philip Tucker, Edith Tucker and Rennie Tucker (Tucker defendants or movants ) jointly moved for an order pursuant to CPLR § 2221 granting re-argument and renewal of an order of this court entered on November 12, 2008 (subject order) and for an order pursuant to CPLR § 3025 granting leave to amend their answer. . Plaintiff opposed the motion.

BACKGROUND

By amended notice of motion filed on May 13, 2009, under motion sequence number four, the Tucker defendants previously moved for the exact same relief sought in the instant motion. On June 19, 2009, the court denied motion the motion on procedural grounds and without prejudice based on their failure to annex the prior motion papers which yielded the [*2]subject order. They were advised that they could make the motion again within thirty days so long as they annexed the prior motion papers to their motion. The motion would be deemed timely if these conditions were met and if the movants could demonstrate that the motion was timely when originally made.

The instant motion is the movants attempt to do that. On September 11, 2009, during oral argument, the movants advised the court that they could not locate all of the prior motion papers in their office or the King's County clerk file and chose to proceed with what they had to meet the thirty day deadline set by the court. Plaintiff was prepared to oppose the motion on other grounds unrelated to the failure to annexed the complete set of prior motion papers. The court continued hearing oral argument and reserved decision on the instant motion. The court considered the motion papers submitted for the instant motion as well as the motion papers submitted for motion sequence number four to issue this decision and order.

MOTION PAPERS

The Tucker defendants' motion papers contain, an affirmation of their counsel, defendant Edith Tucker's affidavit and several annexed exhibits. Exhibit A is a letter from the Brooklyn Borough Commissioner, dated September 8, 2009, addressed to Heywood Blaufeux. Exhibit B is a copy of the subject order. Exhibit C is a copy of the movant's notice of appeal of the subject order. Exhibit D is a copy of a notice of its entry of the subject order. Exhibit E is an affirmation of service which reflects that the movants served their motion papers under sequence number four on the plaintiff on April 20, 2009. Exhibit F is a copy of the summons and verified complaint. Exhibit G is a copy of the movants' verified answer. Exhibit H is a copy of a mortgage note. The next exhibit is marked J and is a copy of a mortgage (there is no exhibit I). Exhibit K is a copy of the plaintiff's notice of motion for summary judgment which yielded the subject order. The next exhibit is marked M and is a web page from the Treasury Department (there is no exhibit L).

Plaintiff's opposition papers consist of an affirmation of counsel and two annexed exhibits. Exhibit A is the court's decision dated November 12, 2008, (the subject order), and notice of its entry. Exhibit B is a copy of a the United States Postal Service Express Mail receipt showing delivery of the instant motion to plaintiff's counsel on May 11, 2009.

The Tucker defendants submitted an affirmation of their counsel containing several annexed exhibits in reply to plaintiff's opposition papers.

APPLICABLE STATUTES

CPLR § 2211. Application for order; when motion made. A motion is an application for an order. A motion on notice is made when a notice of the motion or an order to show cause is served.

CPLR Rule 2221. Motion affecting prior order. (d) 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 [*3]copy of the order determining the prior motion and written notice of its entry.(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.CPLR Rule 3025(b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.

LAW AND APPLICATION

The Tucker defendants label that part of the motion seeking to effect the November 12, 2008 order of this court as a motion for re-argument and renewal. In support of their application to reargue, they contend that the court misapprehended the law in dismissing certain affirmative defenses without considering the defendants' counterclaims. In support of their application for renewal, they submit an affidavit of defendant Edith Tucker. The affidavit is offered as a rebuttal of facts raised in a letter contained in plaintiff's reply affidavit in the prior motion papers. As previously indicated, the complete set of the prior motion papers are not annexed.

With regard to the movants' request for leave to amend their answer, the only reference made in support of this relief is contained in two paragraphs of their counsel's affirmation. In paragraph thirty seven counsel explains that the movants want to assert a thirteenth affirmative defense and a fifth counterclaim. The thirteenth affirmative defense claims that the movants payment obligation is based on a contract that is incapable of performance inasmuch as it requires that the property be kept in good repair and there is no property to keep in good repair. The fifth counterclaim alleges plaintiff's collusion with NYC Development and Consulting, LLC, a construction company, to obtain title to the mortgage property without fair compensation. In paragraph thirty eight counsel submits that discovery has not yet taken place and therefore there can be cause no prejudice to the plaintiff in [*4]permitting the amendment.

In opposition, plaintiff alleges that the instant motion for an order granting re-argument or renewal of the subject order is untimely and offers nothing new. In support of the claim of untimeliness, plaintiff submits proof of entry of the subject order with the Kings County clerk's office on February 13, 2009 and notice of entry on the movants of said order on March 17, 2009. Plaintiff's contend that to the extent the motion is one for re-argument it was made well beyond the thirty days after service of a copy of the order with notice of its entry contrary to the requirements of CPLR § 2221(d). Plaintiff further contends that to the extent the motion is one for renewal that an affidavit of one of the Tucker defendants cannot be considered a new fact.

The movants contends in their reply that the instant motion was served on the plaintiff on April 20, 2009 while the subject order was not served upon them until March 17, 2009. The service of the subject order was by mail giving the movants an additional five days or until April 21, 2009 to make the instant motion. The clerk's office would not accept the motion because the motion was not being filed five days before the return date. The movants, then re-noticed and re-served the instant motion. Plaintiff did not dispute or deny the movants' claim of initial service of the instant motion on April 20, 2009 and of their re-notice and re-service of the instant motion. The court credits the movants claim. " A motion is made when a notice of motion is served' " (Reznikova v. Levy, 48 AD3d 777 [2nd Dept. 2008]). In accordance with this rule, the movants' motion for re-argument and renewal was made on April 20, 2009, when it was served, by mail, on plaintiff's counsel ( see CPLR 2103[b]; Reznikova v. Levy, supra). The court finds that the instant motion seeking re-argument and renewal is timely.

The court is placed in the difficult position of sorting out the movants' claim in support of re-argument or renewal without having the benefit of the complete set of prior motion papers to examine. While the movants apparently intended to include all of the prior motion papers they did not do so. They contend that they could not locate the papers and proceeded with what they hand to stay within the thirty day time limit set by the court. The Court has reviewed the instant motion, the prior motion papers submitted under motion sequence number four and that part of the original motion papers that the movants was able to find and annex.

The court finds as follows. The movants wish to change the subject order in so far as it granted plaintiff's request for an order dismissing the defendants' first, second, third, forth, fifth, sixth, seventh, eighth, tenth, eleventh and twelfth affirmative defense. Only the ninth affirmative defense, in which the movants claim that plaintiff is estopped from enforcing the mortgage, survived plaintiff's motion to dismiss.

As the court stated in the subject order, the movants expressly abandoned any challenges to dismiss their second, third and fourth affirmative defense. As a result the court did not address the merits of these particular affirmative defenses. The movants did not address or dispute the unequivocal language of the subject order stating that these defenses were abandoned by them. Under these circumstances, there is no basis for re-argument or [*5]renewal to revive the second, third and fourth affirmative defenses.

With regard to the dismissal of the fifth, sixth, seventh, eighth, tenth, eleventh and twelfth affirmative defense, the movants offered an affidavit of Edit Tucker. The affidavit recited her mental state and conduct and was offered as a rebuttal to claims allegedly asserted in a letter annexed to plaintiff's reply in the prior motion papers. The court finds that the defendants' motion, although characterized as one for renewal and re-argument actually is a motion to reargue because it is not based upon new facts which were unavailable at the time they submitted their opposition to the prior motion for summary judgment (Onorato v. Sangiovanni, 233 AD2d 427[2 Dept. 1996]). Edith Tucker's affidavit is a recitation of facts that were within her knowledge which she is asserting now. They are not new facts they are simply newly asserted old facts (see generally, Kadish v. Colombo, 121 AD2d 722 [2-Dept. 1986]).

A motion for leave to reargue is addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision (Beverage Marketing USA, Inc. v. South Beach Beverage Co., Inc., 58 AD3d 657 [2-Dept 2009]). The alleged misapprehension of law is the court's dismissal of any of the affirmative defense without having considered the defendants' counterclaims. The three counterclaims raised in their answer were usury, disgorge excessive interest and unconscionability. The movants have not explained how the mere pleading of these counterclaims effects the viability of the affirmative defenses dismissed by the subject order. In the absence of any explanation on this point, the movants have not demonstrated that the court overlooked or misapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision. Therefore, the movants request for an order pursuant to CPLR § 2221 granting leave to re-argue is denied.

With regard to the application to amend their answer, plaintiff contends without explanation that the proposed amendments are devoid of merit. Leave to amend an answer generally should be granted where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that it would prejudice or surprise the opposing party (Tomasino v. American Tobacco Co.,57 AD3d 652 [2nd Dept.,2008]). A court hearing a motion for leave to amend pleadings will not examine merits of proposed amendment unless insufficiency or lack of merit is clear and free from doubt; in cases where proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied (Mackenzie v. Croce, 54 AD3d 825 [2 Dept.,2008]). Inasmuch, as the plaintiff did not explain and left unclear why or how the proposed amendments were devoid of merit, and the proposed amendment do not appear to be patently devoid of merit, the court will not examine the merits of the proposed amendment (Mackenzie v. Croce, supra). Plaintiff's have not alleged that permitting the proposed amendments will prejudice them in some way. The motion to amend the answer is granted. Plaintiff are deemed served with the proposed amended answer annexed to the instant motion. Plaintiff has twenty days to serve and file his reply to the amended answer with counterclaims. [*6]

The foregoing constitutes the decision and order of this court._______________________________x

J.S.C.