Kelman v New York State Div. of Hous. & Community Renewal
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Kelman v New York State Div. of Hous. & Community Renewal 2006 NY Slip Op 30844(U) January 10, 2006 Supreme Court, New York County Docket Number: 107175/04 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] ,. , ... ..'" . SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY • DEBRA A. JAMES PRESENT: Justice ,. PART 69 107175/04 Index No.: ROBERT KELMAN, Plaintiff, •V• THE NEW YORK S~ATE DIVISION OF HOUSING AND COMMUNITY RENEWAL and MIKA PROPERTIES, Motion Date: OWQ9/05 2 Motion Seq. No.: _0.....- Motion Cal. No.: 84 Defendants. i • . The following papers,lnumbered 1to4 were read on this motion for reconsideration. PAPERS NUMBERED 1 Notice of Motion/Order to Show Cause -A.fm5'~ntt~==::a~- Answering Affidavits - Exhibits 3 Replying Affidavits . . Exhibits D Yea Cross-Motion: 2 a a N 4 IAS MOTION SUPPORT OFFICE Upon the foregoing papers, 1 Plaintiff-tenant moves to reargue pursuant to CPLR 2221 this court's Order and Judgment dated March 15, 2005, only to the extent that such Order granted judgment dismissing plaintiff's ! sixth cause of action against co-defendant Mika Properties. Plaintiff argues that the court improperly dismissed the action against Mika without notice to plaintiff and an · opportunity for plaintiff to be heard under CPLR 3212 (c) because w plaintiff did hot move for judgment against Mika on the prior ~ motion. "' I For bbth substantive and procedural reasons the 0 b :E Check One: I 181 FINAL DISPOSITION Check If appropriate: I D DO NOT POST D NON-FINAL DISPOSITION D REFERENCE [* 2] ·" ..... plaintiff's motion must be den • . .. Substantively, the plaintiff ') misstates the law of swmnary judgment. CPLR 3212 (b) explicitly provides that u[i]f it shall appear that any party other than the moving party is entitled to a sununary judgment, the court may grant such judgment without the necessity of a cross-motion." The court stated in its prior decision that it searched the record and granted defendant Mika judgment dismissing the claims against it though Mika did not appear on the prior motion. Plaintiff citeJ no authority for the argument that a motion for partial sununary judgment limits the claims upon which a court may grant judgment. CPLR 3212 contains no such limitation. The case of Marini v Lombardo (17 AD3d 545, 546 [2d Dept 2005]) offers no support for plaintiff's position as the court in that case noted that "no motion for summary judgment was before the Supreme Court on the reargument application." In this case the plaintiff made a motion for summary judgment. Procedurally, plaintiff fails on this motion to append a copy of the complaint or the prior motion papers which are required to evaluate plaintiff's claim that the court should reconsider its determination dismissing plaintiff's sixth cause of action. "In the absence [of the papers submitted on the motion for which reargument is sought] and other relevant documents providing a context for the position advanced, reargument is not available. Moving counsel, as a seasoned -2- [* 3] ' . ' lawyer, should be well aware a~~ppreciate that the Court does I ~~ ~ not retain the papers following the disposition of an application and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions. On the contrary, it is the responsibility of the moving parties to assemble complete papers which document the procedural history of the applicatior and provide a proper foundation for the relief requested." Lower Main St .• LLC y Thomas Re & Partners, NYLJ, I April 5, 2005,: at 19, col 3 (Sup Ct, Nassau County, Alpert, J.). Plaintiff's omission prevents this court from evaluating arguments related to the particular claim plaintiff seeks to reinstate and therefore the court must deny plaintiff's motion. The court shall also deny Mika's cross-motion for sununary judgment on its counter-claim for attorney's fees and shall dismiss the counterclaim. Section 20 (5) of the parties' lease I provides for reimbursement only for "[a]ny legal fees and disbursements for legal actions or proceedings brought by Owner against You because of a Lease default by You or for defending lawsuits brought against Owner because of your actions. 0 This action does not fall within this lease provision as this action was not brought against Mika because of plaintiff's actions but rather attempted to challenge the DHCR proceedings. Therefore, the counterclaim is wholly meritless and shall be dismissed. Accordingly, it is -3- [* 4] .. t • •·. • ORDERED that plaintiff's i9ion for reargument is DENIED; I I and it is further ORDERED and ADJUDGED that MIKA PROPERTIES' cross-motion fGr summary judgment on its counter-claim is DENIED and pursuant to I CPLR 3212 MIKA] PROPERTIES' counterclaim is DISMISSED, and the Clerk is directed to enter judgment accordingly. I This is the decision and order of the court. I Dated: Janu~ry 10, 2006 ENTER: I .... \! -4- I
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