Chibcha Rest., Inc. v Kaminsky

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Chibcha Rest., Inc. v Kaminsky 2011 NY Slip Op 33726(U) December 23, 2011 Sup Ct, NY County Docket Number: 112224/10 Judge: Judith J. Gische 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JUDITH J. GISCHE, J.S.C. PART PRESENT: )0 Justice Index Number: 112224/201 o CHIBCHA RESTAURANT, INC. vs. DAVID A. KAMINSKY & ASSOC SEQUENCE NUMBER : 002 INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. 0 02 REARGUMENT/RECONSIDERATION The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ __ I No(s). - - - - - Notice of Motion/Order to Show Cause - Affld1vlts - Exhibits An ¢werlng Affldavlts- E x h i b i t s - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ 1No(a). - - - - - Upon the foregoing pape,.., It Is ordered that this motJon Is MOTION IS DECIDED IN ACCORDANCE WITH !HE ACCOMPANYING MEMORANDUM DECISION. Fl LED DEC 27 2D11 NEW YORK COUNTY CLERK'S OFFICE Dated: I4 \ A t> \ l ) \ 1. CHECK ONE: ..................................................................... JUDITH J. " 0 NON-FINAL DISPOSITION ~CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 3. CHECK 1F APPROPRIATE: ................................................ DsenLe ORDER ................. 0 GRANTED Jl(oENIEO DO NOT POST ----------~ LJGRANTEO IN PART LJOTHER DsuBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK IAS PART 10 ---------------------------------------------------------------x COUNTY OF NEW YORK: Chibcha Restaurant, Inc. d/b/a Oxes Nightclub and Miguel Rojas, DECISION/ ORDER Index No.: Seq. No.: Plaintiff (s), -against- 112224/10 002 PRESENT: Hon. Judith J. Gische J.S.C. David A. Kaminsky & Associates, P.C., David A Kaminsky, Esq. and James A English, Esq., Defendant (s). Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s): f ILED Numbered Papers Pitt's n/m (RR) w/RB affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2 Defs' opp, exhs ..................... ·DEC ·27 ·2311 · · · · · · · · · · 3 Pltf s reply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 -----~----------------------------------------------------------------i\J-~'f()Fft( ____________________________ COUNTY CLERK'S OFFICE Upon the foregoing papers, the decision and order of the court is as follows: GISCHE J.; This is an action for legal malpractice and related claims. The court granted the defendants' preanswer motion for the dismissal of this action (Order, Gische J., 8/2/11) ("prior order"). Plaintiffs now seek to reargue defendant's motion and the court's prior order on the basis that the court misapprehended the facts and misapplied the law. Plaintiffs also seek to renew their opposition to that motion in light of a recent decision by the Hon. Peter Moulton dated March 30, 2011, the judge presiding over the parties' legal fees dispute in in the Civil Court, New York County (David A. Kaminsky, P.C. v. Chibcha Restaurant. Inc. et al, Civil Court, N.Y. Co., Index no. 043060 CV 2009) ("legal -Page 1 of 3- .........----------- _. [* 3] fees action"). A motion for leave to reargue pursuant to CPLR § 2221 is addressed to the court's discretion (Foley v. Roche, 68 A.D.2d 558 [1 81 Dept. 1979]). It may be granted 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 Equipment Corp. v. Kassis, 182 A.D.2d 22 [1st Dept 1992]). It is not a vehicle to permit a party to argue again the very questions previously decided (Foley v. Roche, 68 A.D.2d 558 [1st Dept. 1979]; see also Frisenda v. X Large Enterprises Inc., 280 A.D.2d 514 [2nd Dept. 2001] and Rodney v. New York Pyrotechnic Products Co .. Inc., 112 A.D.2d 410 [2d Dept. 1985]) or to offer an unsuccessful party successive opportunities to present arguments not previously advanced (Giovanniello v. Carolina Wholesale Office Mach. Co., Inc., 29 A.D.3d 737 [2nd Dept. 2006]). On the other hand, a motion to renew is based upon the discovery of material facts which existed at the time the prior motion was made but were not then known to the party and for that reason not disclosed to the court [Foley v. Roche, 68 AD2d 558, 567 [1 11t Dept 1979]). An event that takes place after the prior order is made is not considered newly discovered evidence that would support a motion to renew [Donnelly v. Donnell, 114 AD2d 671 [3rd Dept 1985]). For the reasons that follow, permission to reargue and/or renew the prior motion is denied: The court did not misapprehend any of the facts alleged by plaintiffs in connection with the underlying motion or incorrectly interpret the orders made by the judges in the Queens County action. Contrary to p1aintiffs' argument, the court afforded -Page 2 of 3- [* 4] the complaint and its facts a liberal construction and found plaintiff did not have the causes of action stated, for reasons expounded in the court's prior order. The court did not, as argued by plaintiffs, incorrectly apply the law applicable to motions for summary judgment. The recent decision by Judge Moulton is not a "new" fact commanding that this court reconsider its prior order. Judge Moulton made his decision to vacate the default against the Chibcha defendants after this court dismissed the complaint (Donnelly v. Donnell, supra). In any event, Judge Moulton's decision does not change this court's prior determination. While plaintiffs disagree with this court's order, that is not a justification for reargument or renewal. Plaintiffs have all available remedies to them in connection with their pending appeal. Therefore, plaintiffs motion to reargue and renew is denied in its entirety. The court adheres to its prior order. Arguments raised but not expressly addressed are hereby denied. This constitutes the decision and order of the court. Dated: New York, New York December 23, 2011 So Ordered: FI LED DEC 27. 2611 NEW YORK COUNTY CLERK'S OFFICE ¢ -Page 3 of 3-

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