Weingarten v S&R Medallion Corp.

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Weingarten v S&R Medallion Corp. 2012 NY Slip Op 33336(U) July 9, 2012 Sup Ct, NY County Docket Number: 102230/2008 Judge: Shirley Werner Kornreich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/11/2012 1] INDEX NO. 102230/2008 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 07/11/2012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENf)HtRLEY Wf?~RNER KORNREICH PART ,_, ·'9U$tit:e Index Number : 102230/2008 WEINGARTEN, VICTOR vs. S&R MEDALLION CORP., SEQUENCE NUMBER : 007 S'f INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. _ __ REARGUMENT/RECONSIDERATION The following papers, numbered 1 to _ _ , were read on this motion to/fi!IP_..:-...:~__.-..-......-.-+<i.----+-""""""- Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - ~xhibits - - - - - - - - - - - - - - - - I No(s). ~·r>7~f7-J¥-ir\ Replying Affidavits Upon the foregoing ~apel"$, It is ordered that this motion is ~\Jt__~~ ... c._v, ~.-tw~~:!~ .. ....,...~'r ¢.:·~·~ .. · .-. . w t.J i= rJ) ::> .., ::> :l .I.I :t:: :t:: .I.I .L .I.I :t:: ... ..:.:.. .a.. !!?. z 0 en ~ C> .J .J ::> :; 15 u 0::: u z i:: - 3: f) - 0 u ..J f) ..J :( 0 ) L.L 2 ~ 2 2 !: - 1- 0::: 0 t.L 1. CHECK ONE: ..................................................................... 0 ~ON-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETILE ORDER 0DONOTPOST 0_9Rl(NTEDlN PART 0 OTHER .··· 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54 -------------------------------------------------------------------------)( VICTOR WEINGARTEN, Index No. 102230/2008 DECISION & ORDER Plaintiff, -againstS&R MEDALLION CORP., SHIMON WOLKOWICKI a/k/a SAM WOLKOWICKI, RHODA RYKLIN, JONATHAN ZUHOVITZKY and DAVID BEIER, Defendants. -------------------------------------------------------------------------)( KORNREICH, SHIRLEY WERNER, J.: Defendants S&R Medallion Corp., Sam Wolkowicki, Rhoda Ryklin, and Jonathan Zuhovitzky (collectively, the "S&R Defendants") filed a motion: (1) pursuant to CPLR 2221 (d), seeking leave to reargue the Order and Memorandum Decision of the Court dated July 11, 2011, and upon such reargument, vacating so much of the Order of the Court as denies the S&R Defendants' motion for summary judgment and granting said motion; (2) pursuant to CPLR 2221 (e), granting leave to renew the motion for summary judgment to the extent that the Court previously denied it, and upon such renewal, to vacate the Order of this Court insofar as it denied the S&R Defendants' motion for summary judgment; and (3) pursuant to CPLR 3212(g), to the extent that, upon grating the motion for reargument or renewal, and vacating the Order of this Court accordingly, if any issues remain, limiting the issues of fact as more specifically set forth herein. The S&R Defendants' motion is denied for the reasons that follow. A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not 1 [* 3] include any matters of fact not offered on the prior motion." CPLR 2221(d)(2). A motion for leave to renew "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 "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e)(2)-(3). This action arises from a 1997 profit-sharing agreement between plaintiff Victor Weingarten and the S&R Defendants. The verified complaint alleges that the S&R Defendants breached the agreement by failing to remit to plaintiff his share of profits including a one-third share of the funds that the S&R Defendants received pursuant to a settlement agreement with Banco Popular North America ("Banco Popular")- a non-party to this action. On July 11, 2011, this Court entered an order that, inter alia, granted the S&R Defendants' motion for summary judgment only with respect to plaintiffs fraud and constructive fraud claims (the Third Cause of Action). The motion for summary judgment on plaintiffs claims for breach of contract was denied, because this Court found that the meaning of "renewal" and "customers of the Program" was ambiguous and that plaintiffs entitlement to a portion of S&R's "Management Back Up Fee" remains an issue of fact. Nothing in the record is dispositive of these issues, including the lists attached to Exhibit E to the Zuhovitzky Affidavit (Document No. 35-5) and plaintiffs admission that he renegotiated the terms of his loans with Banco Popular (Document 35-6). A material issue of fact exists as to whether the program, governed by the 1997 Agreement, was continued with Banco Popular in 2000. Accordingly, it is hereby ORDERED that the motion of S&R Medallion Corp., Sam Wolkowicki, Rhoda Ryklin, 2 [* 4] and Jonathan Zuhovitzk:y, seeking leave to reargue and renew, is denied. Dated: July 9, 2012 ENTER: 3

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