Hauze v Village Mall at Hillcrest Condominium
Annotate this CaseDecided on December 12, 2012
Supreme Court, Queens County
Martha Hauze as Administratrix of the Estate of JAMIE R. TORO a/k/a JAIME TORO, deceased, Plaintiff,
against
Village Mall at Hillcrest Condominium, et al., Defendants.
10010/2008
Charles J. Markey, J.
The following papers numbered 1 to 8read on this motion by plaintiff Martha Hauze, as Administratrix of the Estate of Jamie R. Toro a/k/a Jaime Toro, pursuant to CPLR 2221(d) for leave to reargue that branch of plaintiff's prior motion seeking to refer the prior motion of defendant Village Mall at Hillcrest Condominium (Condominium) for summary judgment to this court for a decision, and upon reargument, to vacate that portion of the order dated March 30, 2012, denying the branch of plaintiff's motion to refer the prior summary judgment motion of defendant Condominium to this court, and reinstating the motion by defendant Condominium and setting a schedule for submission of any opposition by plaintiff and defendant Consolidated Edison Company of New York, Inc. (ConEd), and any reply by defendant Condominium, and for oral argument on the prior motion for summary judgment.
Papers
Numbered
Notice of Motion - Affidavits - Exhibits .............................................1-4
Answering Affidavits - Exhibits ..........................................................5-6
Reply Affidavits ...................................................................................7-8
Upon the foregoing papers it is ordered that the motion is determined as follows: [*2]
Jaime R. Toro, the original plaintiff, died on February 27, 2010. A motion by defendant Condominium for summary judgment dismissing the complaint against it had been served prior to Toro's death and made returnable on December 17, 2009, but was adjourned and not marked fully submitted until March 18, 2010. By order dated March 23, 2010, the court denied the motion by defendant Condominium, and directed that steps be taken to have a personal representative named for the Estate of Jaime R. Toro to prosecute the action.
Defendant Condominium thereafter moved for leave to reargue its prior motion for summary judgment which resulted in the order dated March 23, 2010, and upon reargument, to vacate that order and stay the action pending substitution pursuant to CPLR 1015 of the personal representative of the Estate of Jaime R. Toro for plaintiff Jaime R. Toro. By order dated October 1, 2010, the court declined to entertain the motion by defendant Condominium for leave to reargue, and but nevertheless vacated the March 23, 2010 order, insofar as it had been issued after the death of Jaime R. Toro. The court determined that upon the death of Jaime R. Toro, it was divested of jurisdiction to conduct proceedings in the action, and the action was automatically stayed. The court noted that as of the date of the March 23, 2010 order, no personal representation of the Estate of Jaime R. Toro had been appointed.
Martha Hauze was thereafter appointed as the administrator of the Estate of Jaime R. Toro by the Surrogate's Court, New York County, and by so-ordered stipulation filed on May 6, 2011, Hauze, as adminstratrix of the Estate of Jaime R. Toro, was substituted as party plaintiff and the caption was amended to reflect such substitution. She then moved to lift the stay, restore the case to the active calendar and refer the motion by defendant Condominium for summary judgment to this court, and permit new opposition to the motion and a reply thereto, to be submitted. Plaintiff Hauze argued that the motion by defendant Condominium for summary judgment was not a nullity, since it had been served by Condominium prior to her decedent's death, but that the opposition papers and reply papers which had been served after his death were nullities. By administrative order of the Hon. Jeremy S. Weinstein dated December 20, 2011, the motion by plaintiff Hauze was referred to this court. By order dated March 30, 2012, those branches of the motion by plaintiff Hauze to lift the automatic stay and restore the matter to the active calendar were denied as academic, since such relief had already been accomplished pursuant to the so-ordered stipulation filed on May 6, 2011. Those branches of the motion by plaintiff Hauze to refer the prior motion by defendant Condominium for summary judgment to this court for decision based upon the motion papers previously filed with the court, and for an award of costs, including attorneys' fees, were denied. The court determined that defendant Condominium's summary judgment motion, having been fully submitted after the death of plaintiff Hauze's decedent, was a nullity. The court also granted defendant Condominium leave to renew its prior motion for summary judgment no later than 30 days after service upon it of a copy of the order bearing the dated stamp of the clerk together with notice of entry, and upon condition it be made returnable to the Part.
In support of her motion for leave to reargue, plaintiff Hauze asserts the court erred in determining that the motion by defendant Condominium for summary judgment was a nullity, [*3]because such motion was served prior to her decedent's death. She contends that defendant Condominium's motion for summary judgment should be allowed to proceed but only on the original motion papers presented by Condominium, and the court should set a schedule for the submission of opposition papers and reply papers only. She also contends that to allow defendant Condominium to prepare new motion papers is unjust and prejudicial to her, because such allowance affords defendant Condominium an opportunity to correct mistakes it made in its original motion papers, and make new and different legal arguments.
On a motion for leave to reargue, the movant must demonstrate matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221[d][2]). Plaintiff Hauze has failed to establish that the court overlooked or misapprehended any relevant facts or law, or that it misapplied any controlling principle of law.
The motion by plaintiff Hauze for leave to reargue the prior motion is denied.
Dated: Long Island City, New York
December 12, 2012J.S.C.
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