Mingrone v City of New York

[*1] Mingrone v City of New York 2007 NY Slip Op 52370(U) [18 Misc 3d 1101(A)] Decided on December 14, 2007 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2007
Supreme Court, Kings County

Vincent Mingrone, Plaintiff,

against

The City of New York, et al., Defendants.



24113/06



Plaintiff:

Michael Andrews, PC

NY NY

Defendant:

Todman Nachamie Spizz & Johns PC

NY NY

Arthur M. Schack, J.

Plaintiff Vincent Mingrone moves to reargue and renew, pursuant to CPLR Rule 2221, this Court's decision and order of December 8, 2006, which dismissed two of the twelve defendants, Judy Hughes and Institute of Allied Medical Profession, Inc. (IAMP) from the action, pursuant to CPLR Rule 3211, for plaintiff's failure to state a cause of action against them. Plaintiff's instant motion fails to comply with the requirement of CPLR Rule 2221 (f) that "[a] combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought." The motion only reargues what was decided on December 8, 2006. It fails, pursuant to CPLR Rule 2221 (e) (2) to present any "new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there has been a change in the law that would change the prior determination." Further, the motion is untimely, pursuant to CPLR Rule 2221 (d) (3). Therefore, as will be explained, the motion is denied.

[*2]Background

The instant action deals with plaintiff's arrest at Brookdale University Hospital and Medical Center, Brooklyn, New York, on September 13, 2005. Defendants Hughes and IAMP are accused of providing false information to the police, which resulted in this arrest and violation of plaintiff's civil rights. The police released plaintiff the next day, and it appears that no formal criminal charges were ever brought against him.

I heard oral arguments, on December 8, 2006, on the motion by defendants Hughes and IAMP for their dismissal from the action. I had before me various motion papers and plaintiff's amended complaint, dated three days earlier on December 5, 2006. The first named defendant in the instant action is the City of New York, which had yet to file an answer and appear in the action. At that time I was recusing myself from any cases involving the City of New York, at the request of the Corporation Counsel of the City of New York. Subsequently, and totally unrelated to this case, my recusal policy with respect to the City of New York terminated.

I explained to the parties at the December 8, 2008 oral arguments that I would rule on the motion to dismiss, and then recuse myself from any further involvement with the case because of the potential involvement of the City of New York. Immediately upon the conclusion of oral arguments I wrote a short-form order, which stated in its entirety:

Motion of defendants Hughes & Institute of Allied Medical

Professions, Inc. (IAMP) is granted for dismissal from the action,

pursuant to CPLR 3211, based upon the original complaint and the

amended complaint of 12/5/06. Plaintiff has failed to allege a cause

of action against defendants Hughes & IAMP. Rastelli v Goodyear

Tire & Rubber Co., 79 NY2d 289. No acts by Hughes and IAMP

are specified in the complaint that are actionable. The Court recuses

itself from further involvement with this matter due to the potential

involvement of the City of New York as a defendant. See attached

recusal order.

My attached recusal order contained boilerplate language that I then used with respect to my recusal at the request of the Corporation Counsel.

Discussion

Plaintiff argues that the instant motion was timely made within 30 days of the service of my December 8, 2006 order and written notice of its entry, pursuant to CPLR Rule 2221 (d) (3). Exhibit 2 of the instant motion is a copy of plaintiff's counsel's notice to all opposing counsel, dated January 12, 2007, that my attached December 8, 2006 decision and order was entered in the Kings County Clerk's office on December 12, 2006. The time and date stamp from the County Clerk's office shows that the decision was "filed" on December 12, 2006 at 8:30 A.M. The instant motion was served by plaintiff's counsel on opposing counsels, according to the affidavit of service, with its mailing on February 9, 2007. This appears to be good service, being made twenty-eight days "after service of a copy of the order determining the prior motion and written notice of its entry." (CPLR Rule 2221 [d] [3] ).

However, plaintiff's counsel disingenuously failed to inform the Court that counsel for defendants Hughes and IAMP previously served a copy of the prior December 8, 2006 order and its written notice of entry. Counsel for defendants Hughes and IAMP, in exhibit A of his [*3]affirmation in opposition, attached a copy of his December 11, 2006 written notice of entry, with copies of my December 8, 2006 decision and order to dismiss defendants Hughes and IAMP, as well as my December 8, 2006 recusal order. The affidavit of service shows that the notice of entry was both mailed and faxed to plaintiff's counsel on December 11, 2006. The fact that the orders were filed at 8:30 A.M. on December 12, 2006 by the County Clerk is a de minimis defect. The orders were filed before the County Clerk's office opened to the public at 9:00 A.M. on December 12, 2006. Therefore, the orders had to be in the possession of the Kings County Clerk's office on December 11, 2006. Thirty days subsequent to December 11, 2006 was January 10, 2007. Therefore, the instant motion to reargue, served on February 9, 2007, is thirty days late and time barred. (See CPLR Rule 2221 [d]; Glicksman v Board of Education Central School Bd. of Comsewogue Union Free School District, 278 AD2d 364 [2d Dept 2000]).

Even if plaintiff's motion for leave to reargue was timely, plaintiff failed to present anything that would have changed my December 8, 2006 decision. Plaintiff's instant motion just presents baseless attacks on my December 8, 2006 decision, claiming that I had recused myself prior to issuing the dismissal decision. It is clear from my decision that after dismissing defendants Hughes and IAMP from the action, I then recused myself "from further involvement with this matter due to the potential involvement of the City of New York as a defendant." Additionally, plaintiff makes contorted claims about the actions of my part clerk on December 8, 2006. This is immaterial and irrelevant to my decision that the original complaint and amended complaint both failed to state a cause of action against both defendants Hughes and IAMP.

With respect to a motion to renew, plaintiff fails to identify what issues are renewed, present any new facts or law that would have changed my December 8, 2006 decision, and to present a reasonable justification as why he failed to present these facts in his papers opposed to the motion to dismiss. (See CPLR Rule 2221 [e]; Yarde v New York City Transit Authority, 4 AD3d 352 [2d Dept 2004]; In re Eshaghian, 7 AD3d 707 [2d Dept 2004]; Allstate Ins. Co. v Davis, 23 AD3d 418 [2d Dept 2005]; Bank of America, N.A. USA v Friedman, 44 AD3d 696 [2d Dept 2007]; Hunt v Odd Job Trading, 44 AD3d 714 [2d Dept 2007]; Tower Ins. Co. of New York v T & G Contracting Inc., 44 AD3d 933 [2d Dept 2007]). Plaintiff merely quotes from his amended complaint, which was examined on December 8, 2006, and recites his collateral attacks on my prior order. Plaintiff should be mindful of the Court's admonition (Matter of Beiny, 132 AD2d 190, 210 [1st Dept 1987] appeal dismissed 71 NY2d 994 [1988]), that "[r]enewal is granted sparingly, and only in cases where there exists a valid excuse for failing to submit the additional facts on the original application . . . it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation."

Conclusion

Accordingly, it is

ORDERED, that the motion of plaintiff Vincent Mingrone, to reargue and renew,

pursuant to CPLR Rule 2221, this Court's decision and order of December 8, 2006, which dismissed defendants Judy Hughes and Institute of Allied Medical Profession, Inc. from the instant action, pursuant to CPLR 3211, is denied.

This constitutes the Decision and Order of the Court. [*4]

ENTER

____________________________

HON. ARTHUR M. SCHACK

J. S.C.