Rodriguez v E&P Assoc.

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Rodriguez v E&P Assoc. 2012 NY Slip Op 33631(U) July 19, 2012 Sup Ct, Bronx County Docket Number: 7985/2002 Judge: Alison Y. Tuitt 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. [* 1] FILED Aug 02 2012 Bron1Jilw'll6~§l.ipREME COURT - COUNTY OF BRONX ' PART 05 Case Disposed ol Settle Order Schedule Appearance 0 i E COURT OF THE STA TE OF NEW YORK TY OF BRONX: CO - ----------------------------------------------------------------)( Index N,. RODRIGUEZ,IVAN -against- 0, 0007985/2002 Hon. ALISON Y. TUITT Justice. E&P ASSOCIATES -------------------------------------------------------------------X d l"he following papers numbered I to Notic ed on J one 03 2010 andd U!y SU I Read on this motion, DISMISSAL itted as No. on t he M otion Calendar o f ;ilit;;;; PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed I ' '2.. ' Answering Affidavit and Exhibits L Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Upontheforegoingpapersthis ~ ~ ~ ~~OM ~ ~ w ..- ~ l--Hi -\-k_ ~-e.,d c ·s 0 iJj u ·t; 'O ~ ~~Cl ~-_,Dated: 1 , I !I I / i . jl~ Hon._b,L..::::__ _,___-::___::___,--,,_ __ ALISON Y. TUITT, J.S.C. [* 2] FILED Aug 02 2012 Bronx County Clerk EW YORK SUPREME COURT----------COUNTY OF BRONX IV AN RODRIGUEZ, INDEX NUMBER: 7985/2002 Plaintiff, -againstE&P ASSOCIATES, WAYNE EISENBAUM, PHYLLIS COHEN d/b/a E&P ASSOCIATES, MOJ)ELL'S NY, INC., MODELL'S NY II, INC., IJYKER ASSOCIATES, DYKER ASSOCIATES, !NC., MA YER EQUITY INC., EMIL MAYER, NICHOLAS PARA, INC., NICHOLAS PARASCONDOLA, LEONARD COLCHAMIRO, P.C., LEONARD COLCHAMIRO, AMPM ENTERPRISES LLC, AMPM ENTERPRISES and ALAN J. HELENE, Present: HON. ALISON Y. TUITT Justice Defendants. ·rhc fo1Iowing papers nun1bered 1 to 4, J{ead on this Defendants' Motion to Disrniss and Plaintiff's Cross-Motion for Partial Su111mary Judg1nent On Calendar of Notice of Motion/Cross-Motion-Exhibits and Affirmations. _ __Jl~·.62_ _ _ _ _ _ _ _ _ __ Affirn1ation in Opposition/Exhibits _ _ _ _ _ _ _ _ _ __.d.3_ _ _ _ _ _ _ _ _ _ __ i{eply Affirmation 4 lJpon the foregoing papers, defendants Modell's NY, Inc. and Modcll's NY II, Inc. (hereinafter col!ectively "Modell") 1notion to dismiss plaintiff con1plaint based on the Workers' Compensation !~aw§ 11, to strike plaintiffs Note of issue and/or dismiss the action for plaintiff's failure to provide discovery and/\)r con1pel plaintiff to provide discovery and plaintiff's cross-1notion for p~rt(al su1nmary judgn1ent on the issue of [* 3] FILED Aug 02 2012 Bronx County Clerk \Vhether defendants may assert the Workers' Compensation defense at the tirne of trial, or at any time arc consolidated for purposes of this decisio11. For the reasons set forth herein, the 1notion is denied in part and referred in part and the cross-motion is granted. This action is based upon personal injuries allegedly sustained by plaintiff on Noven1ber 20, 2000 \Vhile \Vorking at the retail chain store known as "Modell's Sporting Goods". Plaintiff alleges that as a result of the accident, he sustained a fractured left ankle and developed co1nplex regional pain syndrome. l'he only defendants remaining in this action arc Modell's NY, Inc. and Modell's NY II Inc. All othe'r defendants \Vere disn1issed from the case by order of Justice Nelson Ro1nan dated August 14, 2008. On March 2, 2010, the Appe!late Division, First DepartJnent aflinned Justice Ron1an's decision. Modell's argues that plaintiffs action should be dismissed based on the Workers' Compensation exclusivity. Modell's contends that since plaintiff\vas employed by Modell's and received Workers· Con1pensation benefits, the Workers' Compensation defense is 1neritorious. Plaintiff argues that pursuant to a stipulation signed by the parties, his cross-n1otion seeking a determination by the Court that defendants n1ay not assert a Workers' Compensation defense 1nust be granted. This issue has been previously been detern1ined by tl1is Court and by the agreement of the parties. Defendants had previously moved this Co1Lrt to have plaintiffs con1plaint dismissed on the grounds that they were 1nere alter egos of the plaintiffs employer and that the Workers' Con1pensation la\V prohibits plaintiff fron1 suing the.m. By decision and Order dated February 25, 2005, this Court denied Modell's 1notion holding that factual assertions of defendant's President in his affidavit ... without more is inadequate to establish that both entitles are alter-egos of each other. See Longshore v. Paul Davis Sys. of the Capital Dist., 304 A.D.2d 964 (3d Dept. 2003)(closely associated corporations. even ones that share directors and officers, will not be considered alter egos of each other if they \Vere formed for different purposes, neither is a subsidiary of the other, their finances arc not integrated, assets are not co1nn1ingled, or the principals treat the two entitles as separate and ·distinct) Therefore, as this matter has already been decided by this Court, defendants' motion is one to reargue and/or renew its prior 1notion. C.P.L.R. Rule 2221 pennits a party to 1nove for reargument of a n1otion and requires that a motion for leave to reargue be n1ade within 30 days after service of a copy of the order de1er1nining the prior motion. Here, decision and Order \Vas entered by the Co11nty Clerk's Office on or about 2 [* 4] FILED Aug 02 2012 Bronx County Clerk March 9, 2005. Accordingly, the motion is patently untimely. See, ln re Huie, 20 N.Y.2d 568 (1967) (Moti6ns for rearg4ment must be n1ade within the same tin1e limitations as an appeal). Moreover, defendants' tnotion for reargun1ent is denied as the movant \vholly fails to meet his burden in order to qualify for rcatgument, i.e., that this Court overlooked or 1nisapprehended any matters offact or la\v in issuing the Orders. (Reargu1nent of a motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided, or to present arguments different fron1 those originally asserted. Massev v. City ofNe\v York, 672 N.Y.S.2d 679 (1 51 Dept. 1998); Pahl Equipn1ent. v. Kassis, 588 N .Y .S.2d 8 (l ' 1 Dept. 1992). This Court adheres to its February 25, 2005 decision and Order and defendants' motion for reargument is denied in its entirety. With respect to renewal of the 1notion, it is also denied. A motion for leave to rene"v " ... shall he ba.1·ctl UfJOn ne1v.facts not offered on the prior n1otion that 'vVOtild change the prior determination or shall den1onstrate that there has been a change in the law that would change the prior determination ... and... shall con/(lin reason{1hle justification .for the fGi/ure to 11resent such.facts on the JJrior motion." C.P .L.R. Rule 2221. Renewal should be denied where the n1otion is based on the san1e facts asserted in earlier n1otion and fails to present nev ¢/ facts. Pal1l su11ra. Renev. ¢al should also b<: d1:nicJ. where the new facts are presented but the party fails to offer a valid excuse for not sub1nitting the additional facts upon the original application. Foley v. Roche. 418 N.Y.S.2d 588 (1°1 Dept. 1979). Here, defendants fail to present any new material facts in support of their n1otion for renewal. Matter of State farm Mutual Auto Insurance Co. v. Barbera, 555 N.Y.S.2d 177 (2d Dept. 1990). Moreover, the parties had previously agreed that defendants would not assert a Workers' Con1pensation defense. In a Stipulation dated July 12, 2005 signed by counsels for plaintiffs and nloving defendants, the parties agreed that Modell's "n1otion relating to the workers' co1npenSation defense wi!l not be renc\ved". Defendants' counsel signed the stipulation and then sent it to plaintiff's counsel for signature. Prior to signing the stipulation, plaintiffs counsel added, after the aforen1entioned sentence, "or raised at trial". Defendants argue that by adding that ter1n, tl1e stipulation \vas invalidated. 1-lowever, plaintiffs counsel sent the signed stipulation to defe11se counsel and they never returned or rejected it because of the added language. Defendants did not object to the stipulation for over five years. It is well-settled that "[a] valid stipulation should be construed as an independent agree1nent 3 [* 5] FILED Aug 02 2012 Bronx County Clerk subject to the \ve!l-settled principles of contractual interpretation." Savoy Mgt. Corp. v. Leviev Fulton Club LLC. 858 N.Y.S.2d 18, 140 (1°1 Dept. 2008). "Only where there is cause suf1icient to invalidate a contract, such as fraud, collusion, n1istake or accident, will a party be relieved frm the consequences of a stipulation n1ade during litigation." Hallock v. State of New York, 64 N. Y.2d 224, 230 ( ! 984). Here, defendants have not alleged any fraud, n1istake, collusion or accidents with respect to the stipulation. ]"o the extent that there was a counter-offer when plaintiffs counsel added the 8.dditional language, defendants clearly accepted it in not rejecting or objecting to the stipulation. "An offer may be accepted by conduct or acquiescence." John Willian1 Costello Assoc. v. Standard Metal Corp., 472 N.Y.S.2d 325, 328 (I" Dept. 1984). Thus, defendants by their conduct in not rejecting or objecting to the stipulation once it was received, deemed to have assented to the terrns set' forth therein. Accordingly, it is deemed that tl1e stipulation and its tern1s \\1ere accepted by defendants. 'J'herefore, defendants' niotion is denied and plaintiffs cross-n1otion is granted. The branch of defendants' n1otion with respect to the Note oflssue and Discovery issues are to be brought before the DCM Part for decision. l'his constitutes the decision of this Court. Dated 1 !9 //Z, / Hon. Alison Y. Tuitt 4

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