Viglietta v Lavoie
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Viglietta v Lavoie 2012 NY Slip Op 30586(U) February 27, 2012 Supreme Court, Suffolk County Docket Number: 09-42253 Judge: Joseph Farneti 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] SII(JltT INDEX No. FURM (I!{DER 09-42253 SUPREME COURT - STATE OF NEW YORK IAS. PART 37 - SUFFOLK COUNTY PRESENT: Hon MOTION DATE MOTION DATE ADJ. DATE JOSEPH FARNETI Acting Justice Supreme Court 10-21-11{#0031 10-27-11(#004 & #005) 10-27-11 Mot. Seq # 003 - MD # 004 - XMO #005 - MD ---------------------------------------------------------------X FREDERICK VIGLlETTA, Plaintiff, . ¢ COi. / ~ DEJESU MAlO & DEJESU Attorney for Plaintiff 191 New York Avenue Huntington, New York 11743 - against ALAIN LA VOlE and STELLA LOUJSE LAVOlE, MICHAELANGELO MATERA Attorney for Defendants 560 Broadhollow Road, Suite 303 Melville, New York 11747 Defendants. ---------------------------------------------------------------)( Upon the foIlowing papers numbered 1 to..11...- read 011 these Illations to reargue/dismiss/impose sanctions; Notice orMation/Order to Show Cause and supporting papers J - 7, 8 - 9 ,Notice ofemss Motion and supporting papers 10 - Hi _; Answering Affidavits and supporting papers 17 - 18, 19 - 20 ,Replying Affidavits and supporting papers 21 - 22,2324 ; Other _; it is, ORlJERED that these motions (seq. #003 & #005) by defendants Stella Lavoie and Alain Lavoie, and this motion (seq. #004) by plaintiff Frederick Viglictta are consolidated for the purposes of this determination; and it is further ORDERED that this motion (seq. #003) by defendants Stella Lavoie and Alain Lavoie for an Order granting leave to renew and reargue their prior motion, which was denied by Order of this Court dated August 1, 2011, is granted to the extent set forth herein, and is otherwise denied; and it is further ORDERED that this cross-motion (seq. #004) by plaintiff Frederick Viglietta for an Order dismissll1g defendants' counterclaims, striking defendants' answer, and imposing sanctions IS granted only to the extent that defendants' counterclaims for defamation and an award of PlUlitive damages arc dismissed; and It is further [* 2] Viglll.::ttav LaVoie Index No. 09-42253 Page 2 ORDERED that 11llS motion (seq #(05) by defendants for an Order imposing sanctions and awarding costs and attorney's fees based on plaintiffs al1eged fnvolous conduct IS denied. Pl,untdl Fredenck Vlghetta commenced this action pursuant to Real Property Law Article 15 to compel the return of real and personal property allegedly converted by his daughter and her husband, defendants Stella Lavoie and Alain Lavoie. Plamtiff and his wife, Stella ViglieUa, held title to premIses known as 5 Jeffrey Lane, Lake Success, New York, as tenants by the entirety until she passed away in May 1000. Following a hospitalil:ation for illnesses and accident-related injuries, plaintiJlallegedly agreed Lolet defendants live at his residence rent free if they promised to help take care of him and manage his financial affairs. By hIS complall1t, plaintiff alleges, among other things, that defendants forged his signature in connection With a fraudulent sale of hIS residence; that defendants used the proceeds of the sale and money taken iioJ1l his bank account and safety deposIt box to purchase theIr current residence and other personal items; that defendants did not include his name on the deed to the new residence; that defendants refused to let him back into the residence following an accident that requllwl his hospitalization; and that defendants unlawfully cashed his pension and social secunty checks \vhilc he \vas at a rehabilitation facility. Simultaneous with the conm1encement of this action, plai miff filed a notice of pendency against defendants' residence, known as 50 Annadale Road, Commack, New York. On December 17, 2009, defendants jnined issue by filing an answ·er with counterclaims. Defendants' counterclall1Js includes causes of action for punitive damages, defamation and an award ofpullitive damages based on harm to their reputation. By Order dated August 1,2011, this Court denied a motion by defendants seeking, inter alia, dismissal of plaintiff's complaint and cancellation ofa notice of pendency filed against the subject residence, as well as a cross-motion by plaintiff for an Order striking defendants' answer. Defendants now seek to renew and reargue theIr prior motion, and request that they be granted leave to amend their answer to include various affirmative defenses, including estoppel and Statute of Frauds, and a third counterclaim based on slander of title. Plaintiff cross-moves for an Order dismissing defendants' counterclaims, strik..ingtheir answer based upon their alleged failure to respond to discovery demands, and imposing sanctions for frivolous conduct. By way of an additional motion, incorrectly labeled as a croSS-Illation, defendants also seek an Order imposing sanctions against plaintiffbased upon his alleged fnvolous conduct in connection with this motion and prolonging litigation. A Illotion for leave to renew must be based on 118\\1 or additional facts "not offered all the prior motion that would change the prior dctell11matlOn" and "s11a11ontam a reasonable justillcatlOn for the c failure to present such facts on the prior motion" (CPLR 2221 (c) (2), (3); see Ramirez v Khan, 60 AD3d 748, 874 NYS2d 257 [2d Dept 2009]; Lardo I' Rivltlh Trallsp, Corp., 46 ADJd 759, 848 NYS2d 337 [2el Oept 2007]). \Vhile a COUl1maygrant renewal upon facts known at the time of the original motion, leavc to rencw should be denied \vhen the moving pm1y faIls to offer a reasonable excuse for not submitting such new facts on the prior motion (see Sobin I' Tylutki, 59 AD3d 701, 873 NYS2d 743 [-2d Dept 2009]; BOllkye-Yilldom v Roosevelt U"iOll Free School ]Jist., 57 AD3d 929, 871 NYS2d 314 [ld Dept 2008]; Worrel/II Parkway Estates, LLC, 43 AD3d 436, 840 NYS2d 817 [2d Dept 2007J), as 11 is "not a second chance freely given to parties who have not exercised due diligence III making their first factual presentation" or who failed to assert a legal theory due to a mistaken "assumption that what was [* 3] Viglicll:l v LaVoie Index No 00-422SJ Page 3 submitted was adequatc" (Matter of Weinberg, 132 AD2d 190,210,522 NYS2d 511 [1st Dept 1987J, Iv dismissed 71 NY2d 994, 529 NYS2d 277 [1988]; see Castillo v 711 Group, Inc., 5S AD3d 773, 866 NYS2d 321 12d Dcpt 2008]; Hartl' City of New York, 5 AD3d 438, 772 NYS2d 574 [2d Dcpt 2004] ). Convcrsely, a motion for leave to reargue must be based on matters of fact or law allegedly overlooked or 111lsapprChelldedby {he court in detennining the prior lllalion, and may not be used to advance arguments di lTerent than those presented on the prior motion (CPLR 2221 (d) (2); see Mazillov I' Rella, 79 AD3d 979, 912 NYS2d 896 [2d Dept 201OJ; Pryor v Commonwealth Land Title lns. Co., 17 AD3d 434, 793 NYS2d 452 [2d Dcp! 2005]). [n support of the branch of the motion for renewal, defendants submit affidavits by Gloria Boyd, John Haplin and Sheldon Feinstein, as well as a copy of the 2000 federal income tax return filed by plaintiff. Defendants failed, however, to offer any reasonable justification for thelf failure to include such evidence in their prior motion. Rather, defendants aver that lhe purported new evidence was not ·'readily avai labIe," and that they lU1expcctedly came across plaintiffs' tax return while searching through their own records. Accordingly, the branch of defendants' molion seeking renewal of the motion is denied (see Sobill v Tylutki, supra; Boakye-Yiadom v Roosevelt Union Free School Dist., supra; Worrell v Parkway Estates, LLC, sl/pra; Castillo v 711 Group, Ilfc., sl/pra). As for the branch of defendants' motion seeking reargument. defcndants failed to demonstrate that the Coun overlooked Of misapprehended the relevant facts or law, and improperly sought to advancc argumcnts different than those presented in the prior motion. Significantly, defendants do not argue that the Court erred with respect to its determination that judicial preemption was inapplicable, because plaintifrs bankruptcy proceeding was dismissed without a decision on the merits. Rather, they argue, based on thc newly submitted tax rctum, that plaintiff is estopped from advancing in this case any position inconsistent with the position taken on his tax return. Therefore, the branch of defendants' motion seeking reargument of the prior detem1ination also is denied (see Haque v Daddazio, 84 AD3d 940,922 NYS2d 548 [2d Dept 2011]; Mazi1tov v Rella, supra; Pryor v Commollwealth Land Title IllS. Co., supra). With regard to the branch of defendants' motion seeking leave to amend their answer to mclude new affinmltive defenses and counterclaims, defendants waived the affirmative defenses of estoppel, payment, and the Statute of Frauds by failing to raise them either in a pre-joinder motion or in their imtlai answer 10 plaintiffs complaint (CPLR 3018 (b); CPLR 3211 (e); Mayers v D'Agostillo, 58 NY2d 696,458 NYS2d 904 [1982]; MatterofSiJJlolld.~' l' Kirkland, 67 AD3d 1481,889 NYS2d 350 [4th Oept 20091; Raoul" Olde Village Hall, Inc., 76 AD2d 319, 430 NYS2d 214 [2d Ocpt 1980]; Blecher l' Pecoral, I G AD2d 878, 559 NYS2d 553[2d Dept 1990]). Moreover, defendants' proposed counterclaim based on slander oftit1e is palpably insufficient and devoid of merit, as such a cause of action docs not lie where, as here, defendants failed to plead speCIal damages resulting from the loss ofa sale of the subject propel1y (see Rosenblum v City of New York, 8 NY3d 1,828 NYS2d 228 [2006]; Htwhitlge I' Jlum, 183 A D2d 700, 583 NYS2d 288 [2£1Dept 1992]). Nevertheless, inasmuch as plaintiff has not demonstrated any surprise or prejudice with respect to the remainder of tile proposed affim1ative defenscs based on failure to state a cause of action, failure to plead with particularity and failure to name all necessary parties, the branch of defendants' motion for leave to amend its answer accordingly, is [* 4] Vigliella v LaVoie Index No. 09-42253 Page 4 granted (see Lariviere v New York City Tr. Auth., 82 A03d 1165,920 NYS2d 231 12d Oert 2011]; Gitlin v Chiri"kill, ()O AD3d 901, 875 NYS2d 585 [2d Dert 2009]). However, the branch of plain tifT's cross-Illotion for an Order dismlss111gdelcndants' countcrcla1l11Spursuant to CPLR 3211 (a) (7) is granted to the extent that defendants' counterclaim for defamation and an award of punitive damages based upon alleged ha1111o their reputation is dismissed. t Although dclcndants have subm1tted a copy ofa newly proposed amended answer with their motion, "[i]t IS the rule in the Second Depm1ment that a motion 10 dismiss which is addressed to the merits may not be defeated by an amended pleading·' (Livadiotakis v Tzitzikalaki!J·, 302 AD2d 369, 370, 753 NYS2d 898 r2d DCp12003]; see also TreaJlo v Fine, 17 AD3d 449, 793 NYS2d 451 [2d Dert 2005]). Moreover, a defendant whose motion IS addressed to the merits of the pleadings retains the option ofapplymg lheir motion to lhe amended pleadings (see Sage Relllty Corp. v Proskauer Rose, 251 ADld 35, 675 NYS2d 14, rev·cI 011 Olltergrounds at 91 NY2d 30, 66 NYS2d 985 [1997]; see also 49 Jy. /1 TellQllts Corp. v Seidenberg, 6 AD3d 243, 774 NYS2d 339 [1st Dept 2004]; DiPaslfuale v Security Milt. Life Ills. Co. of N. Y.. 293 AD2d 394, 740 NYS2d 626 [1st Dept2002]). Where, as here, a defendants' counterclaim for defamation failed to set forth the particular del~llnatory words, or the time, plaee and to whom they werc made, the pleadings are deficient and dismissal orthe counterclaim IS warranted (see Dilloll v City of New York, 261 AD2d 34, 704 NYS2d I [1st Dept 1999]; see also Edell Park Health Servs., Illc. v Onley, 87 AD2d 967, 451 NYS2d 250 [3d Dcpt 1982]). Dismissal of defendants' eountcrclaim for defamation also mandates dismissal ortheir counterclaim for punitivc damages based on alleged harm to their reputations, as New York does not recognize a claim for punitive damages as an independent cause of action (see Rocallova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 612 t\ryS2d 339 [1994]; Rose Lee Mfg. v Chemical Ballli-, 186 AD2d 548. 588 NYS2d 408 [2d Dept 1992]; State v Gelleral Elec. Co., 199 AD2d 595, 604 NYS2d 355 [3d Dept 1993]; Nichols v Village Voice, 57 AD2d 527, 393 NYS2d 716 [1997]). Defendants shall servc an amcnded answer containing the remaining affirmative defenses, along with a copy of this Ordcr, upon plaintiff within 30 days of the entry of this Order. Turning to the branch of plaintiffs cross-motion for an Order striking defendants' answer based on then alleged failure to appear for depositions, the nature and degree of the sanction to be imposed on a motion pursuant to CPLR 3126 is withm the sound discretion of the court (see Pirro Group, LLC v One Poillt St., Inc .. 71 AD3d 654, 655, 896 NYS2d 152 [2d Dept 2010]). However, the "sanction of striking a pleading should be imposed only where the failure io comply with court-ordered discovery is shown to be willful and contumacious" (GiallO I' Ioa1lnou, 78 AD3d 768, 770, 911 NYS2d 398 [2d Dcrt 201 OJ,quoling Byam v City a/New York, 68 AD3d 798, 801,890 NYS2d 612 [2d Dert 2009]). "A finding that a party's conduct is willful and contumacious is warranted where the party has repealedly failed to comply with co1lt1-ordered discovery and has offered inadequate explanations for the failures to comply" (GiallO I' IOall1l0U, supm at 771, quoting Savin v Brook(v" Mar. Park De.'. Corp., 61 AD3d 054,955,878 NYS2d 178 [2d Der! 2009]). Here, It was not clearly demonstrated that defendants' failure to appear for depositions was willful, contumacious, or done in bad faith so as to walTant the extreme sanction of striking their answer (see CPLR 3126 [3]; Greeue v Mullell, 70 AD3d 996, 997, 893 NYS2d 895 [2d Dept 2010J; W.O.R.C [* 5] Vlglieua v LaVoie Index No. 09-42253 Page 5 Realty Corp. )' Asses.\"or, 32 AD3d 860, 861,823 NYS2d 407 [2d Dept 2006]). Indeed, plaintiffs own affinllation indicates that derendams have not violated any Court-Ordered discovery or deposition hearing schedule, and that the most recent date to conduct depositions was postponed due to defendanls' submiSSion or a motion seeking sUll1marydismissal of the action. Thus, the branch of plainti Ws crossmotion seeking all Order Strl~lllg defendants' answer is denied. I~astly, the application by plaintiff for an Order, pursuant to 22 NYCRR 130~1.1, imposing sanctions and awarding costs and attomey's fees based on frivolous conduct, IS denied, as is the crossmotion by defendants for the same relief. The Court finds that neither plaintiff nor defendants engaged in conduct which constitutes frivolous conduct as that reml is defined in 22 NYCRR 130~I.I (c) (see McGee vJ. DlIIlIl COllstr. Corp., 54 AD3d 1009,864 NYS2d 167 [2d Oept 2008); ef Makall Lalld De)'. - Three, LLC)' Prokopov, 42 AD3d 439,839 NYS2d 787 [2d Dept 2007J; Mascia v Maresco, 39 AD3d 504, 833 NYS2d 207 [2d Dept 2007]; Of mall v Campos, 12 AD3d 581, 788 NYS2d 115 [2d DCpl 2004], Iv ,hsmisse<! 4 NY3d 846, 797 NYS2d 422 [2005]). Dated' February 27,2012 FINAl. DISPOSITION X NON·FINAL DISPOSITION
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