Thomas v Dinkes & Schwitzer, P.C.
Annotate this CaseDecided on March 14, 2011
Supreme Court, Kings County
Dermont Thomas, Plaintiff,
against
Dinkes & Schwitzer, P.C., and Herbert Pererria, Esq., Defendants.
14881/2009
Plaintiff Dermont Thomas is pro se
185 Scholes Street 2B
Brooklyn, NY 11206
718-963-3266
Atty for Defendant Dinkes & Schwitzer, P.C.
William Gentile, Esq.
Godosky & Gentile, P.C.
61 Broadway
New York, NY 10006
(212) 742-9700
Francois A. Rivera, J.
By notice of motion filed on May 4, 2010, under motion sequence number eight, defendant Dinkes & Schwitzer, P.C., moved for an order dismissing plaintiff's complaint pursuant to CPLR § 3211(a)(7) on the ground that it fails to state a cause of action.
By decision and order dated September 23, 2010, this court granted defendant's motion and dismissed plaintiff's complaint (see, Thomas v. Dinkes & Schwitzer, P.C., 29 Misc 3d 12029(A) [NY Sup. 2010]).By the instant notice of motion filed on December 20, 2010, under motion sequence nine plaintiff Dermont Thomas moves pursuant to CPLR § 2221 for an order granting him leave to reargue his opposition to defendant's motion sequence number eight which yielded the aforementioned September 23, 2010 decision and order. Plaintiff's motion limits re-argument to the extent of the dismissal of plaintiff's third cause of action. Dinkes & Schwitzer, P.C., opposes the motion. [*2]
BACKGROUND
On June 16, 2009, plaintiff filed a summons and complaint. On February 22, 2010, plaintiff filed an amended complaint. On April 15, 2010, plaintiff filed a rewritten amended complaint dated March 9, 2010. The amended complaint dated March 9, 2010 is seven pages and contains eleven paragraphs. Above every paragraph are headings which name various causes of action. The headings above the first, second, sixth, and seventh paragraphs state that the sentences below them are for causes of action in legal malpractice, and the headings above the third, fourth, fifth, eighth, ninth, tenth, and eleventh paragraphs state that the sentences below them are for causes of action for breach of fiduciary duties, vicarious liability, fraud, intentional infliction of emotional distress, breach of contract, unjust enrichment, and conspiracy, respectively.
MOTION PAPERS
Plaintiff's motion papers are loosely bound and consists of a the notice of motion, his affidavit, and several annexed exhibits which are described in the order that they appear. Annexed are the following documents: a copy of this court's decision and order dated September 23, 2010, a set of the defendant's prior motion papers under motion sequence number eight; a copy of plaintiff's summons and amended complaint and two exhibits, A and B. Exhibit A consists of an affidavit by Michael Furman, attorney for co-defendant Herb Pererria and an affirmation by Richard Godosky, the attorney for Dinkes & Schwitzer, P.C. Exhibit B consists of discovery conference orders, affidavits of service, various responses by plaintiff to discovery demands from defendants, plaintiff's bill of particulars and numerous authorizations for plaintiff's medical records.
Dinkes & Schwitzer, P.C.'s opposition papers consists of its attorney's affirmation and one exhibit. The annexed exhibit is a copy of the court's decision and order dated September 23, 2010 and an affidavit of service of the notice of entry of the order on the plaintiff dated October 4, 2010.
LAW AND APPLICATION
As a threshold issue, the court notes that an amended complaint, once served, supersedes the initial complaint and becomes the only complaint in the case as though the initial complaint was never served (Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650 [2nd Dept., 2004] see also Titus v. Titus, 275 AD2d 409 [2nd Dept., 2010]). The court's prior decision, therefore, concerns the complaint dated March 9, 2010.
Plaintiff seeks to reargue defendant's motion sequence number eight to the extent that it sought dismissal of plaintiff's third cause of action. The court's decision and order, dated September 23, 2010, dismissed the entire complaint. Plaintiff's motion, however, is limited by his request and, as such, concerns the dismissal of the third cause of action. CPLR § 2221 provides in pertinent part, that, "A motion for leave to renew or to [*3]reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order... [and] (d)(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 § 2004 provides that, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."
On September 23, 2010, this court granted defendant Dinkes & Schwitzer's motion to dismiss plaintiff's complaint pursuant to CPLR § 3211(a)(7). Defendant served notice of entry of the court's decision upon plaintiff on October 4, 2010. The notice of entry was thereafter duly filed on October 5, 2010. Plaintiff served notice of the instant motion to reargue on December 20, 2010, which is more than thirty days after service of the notice of entry.
While there is authority permitting the court in its discretion to consider a late motion to reargue a prior motion (see, Itzkowitz v. King Kullen Grocery Co., Inc., 22 AD3d 636, 638 [2nd Dept., 2005]), there is no reason for the court do so here.
The court evaluated the complaint to ascertain whether it contained any factual allegations which would give the defendant and the court notice of the transactions or occurrences intended to be proved, and, second, whether those facts alleged any cognizable cause of action. The court found that the complaint failed to state any coherent or comprehensible factual allegations. The court has found no error in law or fact in deciding the prior motion..
As plaintiff has served the instant motion more than thirty days after service of the notice of entry, plaintiff's motion to reargue its opposition the defendant's motion sequence number eight is denied.
The foregoing constitutes the decision, order, and judgment of the court.
Enter:_________________________
J.S.C.
Enter Forthwith:_________________________
J.S.C.
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