Nussdorf v BDO Seidman, LLP

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Nussdorf v BDO Seidman, LLP 2012 NY Slip Op 33392(U) March 15, 2012 Sup Ct, New York County Docket Number: 601359/09 Judge: Jeffrey K. Oing 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 03/20/2012 1] INDEX NO. 601359/2009 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 03/20/2012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: Justice r I ln-dex Number : 601359/2009 NUSSDORF, GLENN INDEX N O . - - - - - vs. BOO SEIDMAN, LLOP SEQUENCE NUMBER : 016 MOTION DATE _ _ __ MOTION SEQ. NO. - - - REARGUMENT/RECONSIDERATION The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits------------------ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, It Is ordered that this motion Is "This motion is decidP.d in accord~nr.e with th~ annexed decision and order of the Court." w 0 ti ::::> .., 0 IC w a:: a:: w LI. w a:: >- ...J ...J u; - u. z en 3; (!) ::::> 0 t 15 w a:: w z a:: !!l w ~ en ...J ...J 0 LI. c( 0 - J: z w 0 1j:: 0 ~ a:: 0 LI. ( JEFFREY K OINS J.s.c. Dated: I J.S.C. t&:::_ -- . 1. CHECK ONE: ..................................................................... 0 ~N-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 0 GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0DONOTPOST ~HER 0 GRANTED IN PART 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ( JEFFREY K. OING PRESENT: PART J.S.C, l Justice 1 Index Number: 601359/2009 NUSSDORF, GLENN vs. BOO SEIDMAN, LLOP SEQUENCE NUMBER : 015 412 INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - REARGUMENT/RECONSIDERATION The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause -Affidavits - Exhibits Answering Affidavits - Exhibits----------------- Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - I No(s). _ _ _ _ __ I No(s). - - - - - 1No(s). - - - - - - Upon the foregoing papers, It Is ordered that this motion Is w 0 ti :::> .., "This motion iA dilllid11d ifl 11eo6fdanco with the aftflftlced dl!elsit>ri afld 6tdef of tho Court. ¢ ~ c w a: a: w w LL a: .. > ...... ..J !!?. ..J z LL (/) w z :::> 0 t; ~ w a: 8; (!) a: (/) - w ~ 0 ..J (/) ..J c( 0 0 LL - ::c z w 0 ... i= a: 0 ::E 0 LL Dated: b_ : JEFFREYK. OJNG 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ ,J.S.C. 0 CASE DISPOSED ~N-FIN~r·8isP9smoN 0 GRANTED 0 DENIED 0 GRANTED IN PART ~ER 0 SETILE ORDER 0 SUBMIT ORDER ODO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 3] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 48 ----------------------------------------x GLENN NUSSDORF, STEPHEN NUSSDORF, ARLENE NUSSDORF, and RUTH NUSSDORF, Plaintiffs, Index No.: 601359/09 -againstMtn Seq. Nos. 015 & 016 BOO SEIDMAN, LLP, ERIC HANANEL, LAWRENCE COHEN, JOSEPH KLAUSNER, GRAMERCY ADVISORS, LLC, GRAMERCY ASSET MANAGEMENT LLC, and JAY A. JOHNSON, DECISION AND ORDER Defendants. ----------------------------------------x JEFFREY K. OING, J.: BACKGROUND Familiarity with the underlying facts is presumed. Briefly, plaintiffs commenced this action in May 2009 to recover damages allegedly incurred as a result of their investment in three fraudulent tax shelters promoted and marketed to them by the defendants BOO Seidman, LLP ("BOO"), Eric Hananel and Joseph Klausner (the "BOO Seidman defendants") and defendant Lawrence Cohen: (1) the Sentinel Foreign Currency Straddle Transaction, for tax years 1999 and 2000 (the "Sentinel transaction"); (2) the Helios European Style Binary Options Transactions, for tax years 2001 and 2002 (the "Helios transaction"); and (3) -the Gramercy Distressed Debt Transaction, for tax years 2003, 2004, 2005 and 2006 (the "Gramercy transaction"). [* 4] Page 2 of Index No. 601359/09 Mtn Seq. Nos. 015 & 016 6 . In their first amended complaint, plaintiffs asserted causes of action for: (1) fraud, aiding and abet ting fraud, (2) conspiracy to commit fraud, ( 4) fraudulent inducement, (3) ( 5) negligent misrepresentation, and (6) professional malpractice. In a decision and order, entered July 7, 2010, the Court (J.H.O. Ira Gammerman) granted defendants' motion to compel arbitration of all claims relating to the Helios and the Gramercy transactions based on certain arbitration agreements executed by the parties, and dismissed all claims relating to the Sentinel transaction as time barred. . J. H. 0. Gammerman, however, granted plaintiffs leave to replead their professional malpractice claim with respect to the Sentinel transaction to provide factual support for their assertion that the applicable statute of limitation was tolled pursuant to the doctrine of continuous representation. In the second amended complaint, plaintiffs repleaded their professional malpractice claim to include allegations of BDO's continuous representation of them with respect to the Sentinel transaction. Thereafter, the BOO Seidman defendants, by motion sequence no. 013, and defendant Cohen, by motion sequence no. 014, moved, pursuant to CPLR 7503(a), to compel arbitration of the professional malpractice claim asserted in plaintiffs' second amended complaint, and, in the alternative, to stay litigation of [* 5] Page 3 of Index No. 601359/09 Mtn Seq. Nos. 015 & 016 6 that claim, pursuant to CPLR 2201, pending arbitration of the claims asserted in plaintiffs' first amended compla~nt. In a decision and order, entered August 4, 2011, this Court determined that "any continuing professional services that the BOO defendants provided at the request of plaintiffs [with respect to the Sentinel transaction] fall outside the scope of the[] agreements" between the parties and, thus, do not require mandatory arbitration (Decision, p. 11). This Court also denied defendants' motion to stay the instant proceeding pending arbitration of the Helios and Gramercy transaction claims because defendants failed to demonstrate that: Plaintiffs' remaining malpractice claim, which arises out of the 1999 Sentinel transaction, is inextricably interwoven with the arbitrable claims arising out of the later 2001 Helios and 2003 Gramercy transactions. Nor have defendants made clear how the determination of issues pertaining to the 2001 Helios and 2003 Gramercy transactions might dispose of this claim (Decision, p. 12). The Instant Motions The BOO Seidman defendants move to reargue and/or renew the August 4, 2011 decision and order, or, in the alternative, to stay the proceedings pending their appeal of that decision and order. Defendant Lawrence Cohen separately moves for the same relief, and adopts defendants. ~11 the arguments set forth by the .BOO Seidman [* 6] Page 4 of Index No. 601359/09 Mtn Seq. Nos. 015 & 016 6 DISCUSSION A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court (Rostant v Swersky, 79 AD3d 456, 456 [1st Dept 2010] [citation omitted]. Reargument will be "gr~nted only upon a showing that 'the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision'" [William P. Pahl Eguip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [citing Schneider v Solowey, 141 AD2d 813 [2d Dept 1988]). The purpose of reargument is not to provide the unsuccessful party with successive opportunities to reargue issues already decided by the court or to present new arguments not originally asserted (Id.). Contrary to defendants' assertion, the arguments defendants asserted were not overlooked or misapprehended by the Court, but were specifically considered and addressed in the prior decision. The mere fact that the second amended complaint asserts facts regarding the transactions currently in arbitration does not mean that the claims arising from the Sentinel transaction are inextricably interwoven with the claims arising from the Helios and Gramercy transactions. Notably, the Sentinel transaction preceded in time both the Helios and Gramercy transactions. As this Court explained in its prior decision, "[w]hile there may be numerous factual similarities and legal overlap among these three [* 7] Page 5 of Index No. 601359/09 Mtn Seq. Nos. 015 & 016 6 transactions, the underlying facts giving rise to their respective claims are sufficiently distinct" (Decision, p. 12). Similarly, defendantsi ~rgument that the arbitration will resolve the issues raised in this litigation is not persuasive as plaintiffs' claims in this action and in the arbitration, although related, arise out of three separate transactions County Glass & Metal Installers, (cf. Inc. v Pavarini McGovern, LLC, 65 AD3d 940 [1st Dept 2009]). A motion for leave to renew pursuant to CPLR 2221 (e) (2) "is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention (William P. supra, 182 AD2d at 27). Paul Equib. Corp., Here, because defendants fail to meet burden of demonstrating any new or additional facts warranting renewal, that aspect of their motion is also denied. In any event, the ability to proffer evidence on a.renewal motion readily available at the time of the original motion is limite'd (see~' O'Brien v London Woods Dev. Corp., 280 AD2d 423 [1st Dept 2001]). CPLR 2221 (e) (3) specifically requires that the party must provide a "reasonable justification for the failure to present such facts on the prior motion." Here, the arbitration statement of claim on which defendants now rely was filed with the American Arbitration Association on [* 8] Page 6 of Index No. 601359/09 Mtn Seq. Nos. 015 & 016 December 10, 2010. 6 Defendants' reply brief on their original motion was filed more than a month later on January 19, 2011. Defendants could have submitted the arbitration statement of claim to this Court at that time. Defendants cannot rely on that statement of claim now, particularly in light of the fact that defendants offer no reasonable excuse for their failure to do so in the first instance (Estate of Brown v Pullman Group, 481, 482 [1st Dept 2009]). 60 AD3d Even if the Court were to ignore the deficiencies of the renewal motion, the statement of claim would not alter this Court's prior determination. Defendants fail to proffer a sufficient basis for this Court to stay this. action pending appeal. Accordingly, it is ORDERED that the BDO defendants' (015) and defendant Cohen's (016) motions for leave to reargue and/or renew, or, in the alternative, to stay the pro6eedings pending arbitration, are denied. This memorandum opinion constitutes the decision and order of the Court. Dated: HON. JEFFREY K. OING, J.S.C.

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