Roach v Mabry
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Roach v Mabry 2012 NY Slip Op 30219(U) January 30, 2012 Sup Ct, NY County Docket Number: 116193/06 Judge: Manuel J. Mendez Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: 3 PART I 3 Justice MAXINE ROACH, Executrix for the estate of MAX ROACH, INDEX NO. Plaintiff -v- MOTION DATE 116193106 12-14-2011 MOTION SEQ. NO. FRANK MABRY, 004 MOTION CAL. NO. Defendant. The followlng papem, numbered Ito 7 . declslon dated September 29,201I Notice of Motion/ Order to Show Cause Answerlng Affldavlts - Exhlblts Replying Affldavlts Cross-Motion: wera read on thls motJon to mnewlmargue thls court's -Affldavlts - Exhlblts ... - P- JAN 3 1 2012 0 Yes I PAPERS NUMVEMR 1-2.7 I X No NEW YORK Upon a reading of the foregoing cited p@&% '&6iRk'WWXlbn and order of this court that this motion by the defendant, by order to Show Cause, for leave to renew and reargue, and upon renewal or reargument vacating this court's declsion dated September 29,2011 directing the clerk to enter judgment against the defendant Frank Mabry in the amount of $98,790.93 is denied. Plaintiff is the executrix of her father's estate and is seeking to recoup certain musical instruments that belonged to her father at the tlme of hls death. The instruments which were being warehoused were removed by the defendant and taken to another location. When plaintiff learned that the instruments had been removed she requested that defendant return the instruments and when he failed to do so she commenced this action. On May 4,2009 Justlce Shewood held an inquest where he heard testimony from Plaintiff, her witnesses Anton Reid and from the defendant. The defendant stated that he had been in possession of the instruments but that some of them were destroyed in 2008 during a flood of his home; the remainlng instruments were removed to Tennessee where they were being kept in a barn. Justice Shewood rendered a decision ordering defendant to return all of the instruments belonging to the Estate in his possession. [* 2] Plalntlff and her attorney traveled to Tennessee to retrieve the instruments, incurring $6,790.93 in expenses. Once there they proceeded to a barn located inside a farm property of Mr. Mabry. In the barn they found cases of Instruments belonglng to the Estate which they photographed and documented, comparing the pieces retrieved wlth an Inventory list they possessed ( the inventory list had been made by Mr. Anton Reid).. The comparison revealed that only about one-third of the instruments were retrieved, the remalnder, which contained some of the most valuable pieces were unaccounted for. After returning to New York defendant informed Justice Shewood that Mr. Harvey Mars missed a few boxes in Tennessee. Iwould like him to obtain them as soon as possible. Justice Shewood forwarded that correspondence to Plaintiffs attorney. Plalntlff requested that the Sheriff Inspect defendant s property In Tennessee in search of the missing items. The Sheriff inspected the premises but was unable to find any musical instruments or anything with the name of Max Roach. The belief that defendant is still in possesslon of property belonging to the Estate prompted the motlon for contempt. The motion was adjourned final to September 6,2011 for a hearing. Although defendant Mabry appeared at the hearing he chose not to participate and left the courtroom despite the court s warning that If he left the courtroom and failed to participate he did so at hls own peril ( See transcript of hearlng annexed to Plaintiffs afflrmatlon Exhibit 4 Pg. 2 through IO). At the hearing Plalntiff presented the testimony of Maxine Roach, Reglna Davis and Dara Roach. Ms. Maxine Roach testified as previously stated. Ms. Reglna Davis stated she had seen cases of instruments in the Tennessee barn as early as December 13,2006, thereby refutlng defendant s allegation at the inquest that the instruments had been destroyed in the 2008 flood of his home. Ms. Dara Roach testlfled about a conversation she had with Mr. Mabry In October of 2010 wherein he stated that he was not going to let one person get everything , and talked about how things would get distributed. . At the conclusion Plaintiff requested that Mr. Mabry be found in contempt and ordered to return the Instruments under penalty of Incarceration or award a monetary judgment. This court denied the motlon to find Mr. Mabry in contempt but awarded a monetary judgment against him. Mr. Mabry now moves for leave to renew andlor reargue the motion and for an order vacating this court s prevlous decision. [* 3] Mr. Mabry, through new counsel moves pursuant to CPLR 2221 for renewal, submitting an affidavit of Mr. Anton Reid which tends to refute plaintiffs allegations regardlng the property in defendant's possession and arguing that the court misapprehended the facts and misapplied the law. It is important to note that Mr. Anton Reid testified at the inquest before Justice Shewood in 2009, was cross examined by the defendant and none of the informatlon he proffers in his present affldavlt was then elicited. It is also important to note that the motion to hold defendant in contempt was pending before Justice Shewood as of April of 2010 and It was adjourned at defendant's request, by Justice Sherwood and this Court, at least seven (7) times over a period of one and a half years. This court marked the hearing final and on that date defendant again appeared to request an adjournment to obtain counsel. Despite belng advised by the court that the hearing would go foward, defendant deliberately chose to absent himself and left the courtroom. Although a trial court has discretion to grant renewal upon facts known to the movant at the time of the original motion, a motion for leave to renew is not a second chance freely given to parties who have not exercised due dlllgence In making their first factual presentation ( See Huma v. Patel, 68 A.D. 3d 821,890 N.Y.S. 639 [pnd.Dept. 20091, denying motion for leave to renew summary judgment motion where new evidence consisted of copies of general releases in settlement of a prior actlon which allegedly extinguished the underlying debt where the appellant was aware of the existence of these releases at the time summary judgment motion was made and failed to demonstrate that he could not have obtained copies of the release with the exercise of due diligence; Ramirez v. Khan,60 A.D. 3d 748,874 N.Y.S. 2d 257 [2nd.Dept. 20091, denying leave to renew summary judgment motion where party failed to provlde reasonable Justificationfor failure to include affirmation of Doctor on prior motion). A Motion for leave to renew shall be based upon new facts not offered on the prior motlon that would change the prior determination and shall contain reasonable justlflcation for the failure to present such facts on the prior motion (See Guerrero v. Marable, 30 Mlsc. 3d 144 (A), 927 N.Y.S. 2d 816 [App. Term,! 2 I & 13+" I* Jud. Dlst. [201I ] ; Cuccia v. City of New York, 306 A.D. 3d 2 [Ist. 20031). Although a court has discretion to grant Dept. renewal, in the interest of justice, upon facts that were known to the movants at the time the original motion was made, it may not exercise that discretion unless the movants establish a reasonable Justlflcatlonfor the failure to present such facts on the prior motion (Kirby v. Suburban Electrical Engineers contractors, Inc., 83 A.D. 3d 1380,919 N.Y.S. 2d 698 [4* Dept. 20111. ' [* 4] Defendant has failed to show that the evidence he now proffers in the form of Mr. Reid s affidavit was not available at the tlme of the motion. Actually the facts are to the contrary as Mr. Reid was one of the witnesses that testified at the Inquest before Justice Sherwood. Defendant was afforded every opportunity to cross examine Mr. Reid at the inquest and to present hlm as a witness at the contempt hearing on September 6,2011. Defendant failed to avail himself of this opportunity or to provide the court with Mr. Reid s affidavit at the time the motion was made. He has provided no justification for failing to present this evidence. He appears to be seeking a second chance to make his factual presentation, this is not the purpose of a motion to renew. Accordingly, the motion to renew is denied. A motion for leave to reargue is not deslgned to provide an un$uccessful party with successlve opportunities to reargue issues previously decided, or to present arguments different from those originally presented ( UI Haque v. Daddazio, 84 A.D. 3d 940,922 N.Y.S. 2d 548 [qnd. Dept. 20111). A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determlnlng the prior motion, but shall not include any matters of fact not offered on the prior motlon ( CPLR 2221(d)(2)),it is not designed to provide an unsuccessful party with successive opportunltles to reargue issues previously decided or to present arguments different from those originally Dept. presented ( Mazlnov v. Rella, 79 A.D. 3d 979,912 N.Y.S. 2d 896 [2ndm 20101; Carter DDS, P.C., v. Carter 81 A B . 3d 819,916 N.Y.S. 2d 821 [2nd. Dept. 201I]). This court has neither misapprehended the facts or the law. Defendant was ordered to turn over property in his possession that belongs to the plaintiff. A hearing was held at which defendant chose to absent himself. Unrefuted evidence was submitted at this hearing concluslvely establishing that defendant was in possession of certain property belonging to the plaintiff and the value thereof. This court, instead of holding defendant In contempt, with Its concomitant consequences, chose to grant plaintiff a judgment for the value of the property. Defendant now wants this court to vacate Its declslon by arguing matters of fact that were not before the court at the time of the hearing when the motion was decided. Accordingly, the motion for leave to reargue is denied. [* 5] Accordingly, it is ORDERED and Adjudged that the motion seeking renewal andlor reargument of this court's declslon, following a hearing, dated September 29,2011 awarding plaintiff a judgment for the value of the Estate Property in possession of the defendant, is denied. This constitutes the decision, order and judgment of this court. ENTER MANUEL J. MENDEZ L a J S. . c * b * Dated: Jarnuaw 30.2017 Manuel J. Mendex J.S.C. Check one: X FINAL DISPOSITION Check If appropriate: 0 NON-FINF 8 1 s p O ~ l ~ 0 DO NOT POST c REFERENCE ] JAN 3 1 2012 YoRkFpL COUNTY CLERKS NEW NEW YOHK COUNTY CLEHk'S OFIHCE
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