150 Broadway N.Y., Assoc., L.P. v Shandell

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150 Broadway N.Y., Assoc., L.P. v Shandell 2012 NY Slip Op 31312(U) May 8, 2012 Sup Ct, NY County Docket Number: 601950/09 Judge: Judith J. Gische 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. ,CANNED ON 511712012 [* 1] -~ - - ... . [* 2] 150 Broadway N.Y. Assodatber, L.P., DECIMW ORDER Index No.: Seq. No.: Phintiff (6), -against- 801950/09 009 RUESENT: Hon. Judith J, Gische Richard Shandell, Bert Blik, Arthur B i b , Shoaana Bookson, Shandell Blitz Blth & Badrson, LLP, Shandell Blitz Blitz & hhley, LLP, Mitchell H. Ashley, Eequira, Aahley Law Firm, hew Benno, ¬quire, Drew Benenson, CPA and James H. Shenwick, Esquire, Defendant (9). FILED MAY 17 2012 X NEW YORK COUNTY CLEWS OFFICE Recitation, as required by CPLR 3 2219 [a] o the papera considered in the review of f thia (them) motlan(8): PAPERS NUMBERED SBBA, Ashby, Benno n/m (3211) w l U S amm, exhs ......................... 1 15OBwayoppw/ARVaffirm.. ........................................... 2 Bookson opp w/PK M r m , exha .......................................... 3 SBBA, Ashley, Benno reply to 150 Bway wlWS affirm ......................... 4 SBBA, Aehley, Benno reply to Bookson .................................... 5 Varlousstlpsofad] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Urrderlylngmotionpap e r s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . 7 Upon the bmgoing papers, the decision end onder of the murt is 8s tbllows: OISCHE J.: Defendants Shandell Blitz Bookson & Ashley ( SBBA ), Mitchell Aehley, Esq., The Aahley Law Rtm and Ameer Benno, Esq. ( moving dsfsndantd ) seek reargument of their prior motion and the prlor motbn by plairrtiff. In this court s dedslon dated -Page 1 of& [* 3] * November 1,2011 ("1 1/1/11 order")the court denied the moving defendants' motion for summary judgment dlsmlssing the complaint and granted plaintiff's motlon for leave to serve an amended complaint The moving defendants contend the court's 11/1/11 order k Inconsbtent with its Aprll4,2011 order ('4/4/2011"), In which the court denied t plaintlWs motion for a pmliminary Injunction because: "[tlhe relief that plaintiff is seeking reaches too far into the dkolubion prooeaa and plaintiff has no right to it..."and "[t]ha claims that plaintiff has made about how assets are belng dbtrlbuted am a beyond the r n a m soope of this case and are more commonly associated with the litigation of these issues in 81 dh3solution pr~cssdlng (see, v. I-hWQQd, NY2d 911 88 [lgQq)." Thus, the moving d8fendante urge the court to vacate its decision, allowrng the amended complaint insofar as it asaerta new claims for fraudulent conveyancc), transferee IIabffity, hjuncthw mIM and violation of a restraining notice, Imposing Part 130 sanctions on the plaintiff and, in addmon, granting the moving defendants' undertying motion for summary judgment. A motion for leave to reargue pursuant to CPLR Q 2221 b addmwd t the o court's discretion (Folsv v. R m , 08 A.D.2d 558 [Id 1979J).It may ba granted Pspt. only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mlstakenly arrhred at its earlier declalan (Wlllhm P,Pahl E m w d . & 22 11' Dapt 1992n. It I not a vehide to permlt a party to p&& 182 A.D.2d s argue again the very questions previousty decided W h p t . 19791; SBB d S 0 v v. Roche, 68 A.D.2d 558 [lst I 280 A.D.2d 514 [2"aDepL m,, 20011 and Rodrrev v, N e w York P M O ~ p r o d u ~ s InG., 112 A.D.2d 410 [2d Dapt. 19851). -Page 2 of 6- [* 4] I n At the outset, the court addresses arguments by p1aint.W and Bookson that the moving defendants' motion is defectlve because they dld not provide the court with the underlying motion papers and, therefore, this Is reason alone to deny the motlon. Although thbls a correct statement of the law (CPLR 5 2212 [cD, moving defendants the subsequently recUiid their oversight and provided the motion p a w n . Furthermore, the plaintiff and Bookson addressed the movlng dsfsndenb' motion on the mertts and have shown no pmjudice. Consequentty, this is not a reason to deny the moving defendants' mobion to reargue. Furthermore, the court will pennft reargument of the underlying motions, but upon reargument adheras to its original dedslon for the following reaso118: In thla highly contentious caw there has been piecemeal motion practice, cdnslating of no fewer than four (4) separate motion8 for summary judgment brought et varloua stages of this litigation. There was also a post-summary judgment m o t h by plaintmfor a preliminary injunction. Claims by the moving defendants, that the court Is ruling Inmneistentty,even If true, cannot be laid solely at the court's doorstep. The partlss to this action are constantly recastingtheir arguments each t h e the court makes 8 deckion and R is virtually impmlbb to kmp up with thb fluidity. That being sald, the court denies them Is any Inconsistency at all between l t ~ 4/4/11 order and the 11/1/11 order sought to be reargued, nor have the moving defendants shown that the court elther misapprehended the facta or misapplied the law in maklng its decision. Although the moving defendants malntaln that denlal of a preliminary injunction motion portend8 that the daim ha8 no merit, this is entlrdy thelr opinion and conjectural, parlicularly given the unlqua facts of this cam. Likelihood of sumem is but one conafdsratlonin granting or denying a motCon for a prellrnlnaty -?age 3 of 8- [* 5] injunction and, In any event, the decision to grant or deny a preliminary injunction does not bind the court under the doctrlns of law of the case w e i n v. Donwan, 289 A.D.2d 51 [ld 2001I). Hem,plaintiff has a money judgmnt againat an entity that Dept no longer exists under that name. The plaintiff seeks to enforce the unsatisfied judgment against a new enWy andlor person@)who am or have bean involved with each of those enwfes, claiming (among other things) that theere are related entities and that monies ~ l v e am being m o W around to drwmvent the judgment Whether d any of this can be proved remains t be dedded because tha mwing defendants did o not meet their burden of showing they am antttlad to summary judgment BS a matter of law or that them are no triable hues. The court also allowed plaintiff to amend its wmplalnt so those claims could be pursued. Whlb the validity of a p r o p e d amended pleading should be examined by the court to gauge ta legal s f i m y and merit, this examination i not Intendedto supplant t uFd c s a motlon to dlsmbs or for summary Judgmmt(Hwarklns v. Gn s- Gorp, 139 AD.2d 433 [la Dept.19881). In connection with plalntit'fs underlying motion to amend, the requirementsfor amending a complaint were satisfied which i why tt was granted s (sea ZaM Theatre Corn. v Sona R K Co.,18 AD3d 352,3%355 [1 Dept 20053). mv The court observes that In opposing plelntWs undertying motion, the moving defendants did not argue that were the court to allow the emended complaint, such an order would be inconsistent wlth Its prlor order, denying plalnWs m o t h for 8 preliminary InJunction. That argument is now being raised for the Rmt time. A motion t o reargue does not afford an unsu-ful not previously advanced w n party another opportunity to present arguments lello v, -a W h w k m m Mach. C -Page 4 of 6 uI 2 9 [* 6] A.D.3d 737 [2"dDept. 20061). Statements by the movfng defendants' attorney, that the judgment plalntlff obtained cannot be eatlsfled wlth tha a8SOEs of tha new law firm, clients are always free t0 choose the new attorneys they want to have represent them, and legal c w and a clients are not 'assets," restate the same arguments that wem prevlo~ly made and reJectedby h e court. The moving defendants' attack8 on the language WBd in the proposed amended complaint not only b n o m New York's liberal policy of allowing amended pleadings, but the equally relaxed standards appllcable to a motion to dismlss under CPLR 3211 [a]m. By allowlng the plaintiff to WJWan amended complaint the court did not make -nor could it have made -a dedslon on Its merits. Finally, the moving defendants saak the impoattion of sanctions if their motlon t o margue is granted and the couta pdor order, allowing the amended complalnt to be servsd, ia vacated. Part 130 sandlons may be i m p e d for mVolous conduct." Conduct Is Vrivolous" if: (1) it I completely without mm't in law and cannot be s supported by a reasonable argument for an extension, modtlhtion or mversal of existing law; (2) it is undertaken prlmadly to delay or pmfong the resolution of the litigation, or t haram or malidously o injum another; or (3) it asserts matedal factual statements that are false. f hs Even I the moving defendants had prevaikd on t l motion to reargue, sanctlons am unwarranted and they are denied. Concluslon In accordance wlth the forgoing, -Page 5 o 8f [* 7] /i Is hemby ORDERED the motlon by defendants Shandell Blkz Bookson & Ashley, that MitchellAshley, Esq., The Ashley Law Flrrn and Ameer Bsnno, Esq. for reargument of thelr prior motion for summary judgment, plalntHTs motion for permission to Serve an amended complaint and the court's prior order of November I, 1 is granted only to 201 the extent that reargument is pmnmsd but upon reargument, the court adheres to it8 prior order of November 1,2011 in all mspects; and it Is further ORDERED any relief requested but not spedfically addressed is hereby that denied; and tt is further ORDERED thk mnstttutes the decision and order of the court. that Dated: New Yark, Naw Yark So Ordered: May 8,2012 w Hon. Judit J. Ische, JSC FILED NEW YOAK COUNTY CLERKS OFFICE -Page 6 of 6-

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