Alistair Records, LLC v Adams

Annotate this Case

Download PDF

Alistair Records, LLC v Adams 2011 NY Slip Op 33995(U) December 21, 2011 Supreme Court, New York County Docket Number: 603695/09 Judge: Judith 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. SCANNED ON 12/23/2011 [* 1] .. SUPREME COUR PART PRESENT: _Jj)_ Justice ~i~1£f?, 003f/lwf;<J INDEX NO. MOTION DATE /JJ11 CJI- ~td- MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to _ _ were read on this motion to/for - - - - - - PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... e -n z Answering Affidavits - Exhibits - - - - - - - - - - - - - en Cross-Motion: 0 :5 a: ~ Replying Affidavits - - - - - - - - - - - - - - - - - D Yes @No .,....___....---tl::=---l.._.___._ DEC 2 2 2011 Upon the foregoing papers, It is ordered that this motion wz t== ~ en ..... NEW YORK COUNTY CLERK'S OFFICE o- :::> ...I .., 0 0 LI. I- w c :I: w l- a: a: a: 0 ~ motion (a) and crosa-motlon(s) decided in accordance with the annexed decision/order of even data. LI. LU a: > ...I ...I :::> LI. l- o LU ll. en w a: en w en c( 0 2 0 l- o ~ Dated: _ _;:o_d.--1-\_J--_1-1-\_l_\_ _ __ \ \ \ Check one: ,,,.~ FINAL DISPOSITION HOON. ~' s.c. NON-FINAL DISPOSITION 0 REFERENCE D DO NOT POST D SUBMIT ORDER/ JUDG. D SETTLE ORDER/ JUDG. Check if appropriate: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 10 ------------------------------------------------------------x Alistair Records, LLC 1 , DECISION/ORDER Index No.: Seq. No.: 603695/09 003 Plaintiff (s), -against- . PRESENT: Hon. Judith J. Gische. J.S.C. Glen H. Adams, Defendant (s). ----------------------------------------------------------------x Recitation, as required by CPLR 2219 [a], of the paperµ.o'1iite~ t!Jiieview of this S- I C U (these) motion(s): Papers ZOll Numbered 22 Alistair Records w/LKR affirm, DS affid, exhs .......... . 1 Adams' opp w/MMN affirm, exhs ......................................... 2 So-ordered stip re: counterclaims (12/1/11) ............ NEW YORK ............ 3 COUNTY CLERK'S OFFICE DEC . ................. Upon the foregoing papers, the decision and order of the court is as follows: This action arises out of a recording contract between plaintiff ("Alistair") and defendant Glen H. Adams, professionally known as "Chanj" ("Adams"). In connection with prior motion practice by Adams, the court granted Adams summary judgment, dismissing the complaint against him. It also granted his motion for a default judgment in on his znd counterclaim and directed entry of a money judgment against Alistair in the principal sum of $6,000 because Alistair failed to serve a timely reply. The court, however, denied Adams' motion for entry of a default judgment on his 1st counterclaim and dismissed that claim (Order, Gische J., 5/20/11) ("prior order"). The remaining counterclaims (3rd through 7th) were ordered to continue. Alistair opposed the motion on 1 The court ordered the caption amended (Order, Gische J., 5/2011' 1). Page 1 of 3 [* 3] the merits and sought to interpose a late reply to the counterclaims. The court denied that application, noting there was no cross claim for such relief and for other reasons articulated in the prior order, including lack of a meritorious defense (see prior order). Alistair now seeks to reargue the prior motion and have the court vacate its prior order only as it pertains to the court's decision on summary judgment and entry of a default judgment on Adams' 2nd counterclaim. At oral argument of this motion, the parties stipulated to Adams' withdrawing the remaining counterclaims (i.e 3rd through A motion for leave to reargue may be granted on a showing that the court overlooked or misapprehended the facts or the law (CPLR 2221; Williams P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22 [1 81 Dept. 1992]). A motion for renewal "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221 [e][2]). In sum and substance, Alistair blames its previous attorney for why it did not timely interpose a reply Adams' counterclaims. Alistair also disagrees with the court's decision, stating that it overlooked certain procedural defects in Adams' motion and that the court misapplied the law. With the exception of Mr. Scott's affidavit dated April 14, 2011, none of the facts or arguments presented by Alistair are new. A party is charged, however, with the duty to exercise due diligence in making their factual presentation clear in the original motion. A motion to reargue is not another opportunity for a party who has not done so to try again (see Prime Income Asset Management. Inc. v. ~· American Real Estate Holdings L.P., 82 A.D.3d 550 [1 91 Dept 2011]; Leone Properties. Page 2 of 3 [* 4] LLC v. Board of Assessors for Town of Cornwall, 81 A.D.3d 649 [2nd Dept 2011]). Even crediting Mr. Scott's statement, that the failure to reply to the counterclaims is attributable to prior counsel's oversight, the court addressed this issue in its prior order stating that even if Alistair had excusable default, it did not have a meritorious claim, judging by the arguments that would have been presented as reply had that been permitted. Therefore, the court exercises its discretion to deny reargument. There is no basis for renewal either. Accordingly, the motion by Alistair to renew and reargue is denied in its entirety. The court adheres to its original decision and the order is fully enforceable. Stays, if any are vacated forthwith. Since Adams has withdrawn his 3rd through 7th counterclaims, this case is now completed and the clerk shall mark it as "disposed." Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court. Dated: New York, New York December 21, 2011 So Ordered: DEC 2 2 2011 NEW YORK COUNTY CLERK'S OFFICE ,; Page 3 of 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.