Bank of America, N.A. v Ohebshalom

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Bank of America, N.A. v Ohebshalom 2012 NY Slip Op 31486(U) May 22, 2012 Sup Ct, Nassau County Docket Number: 3824/11 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------------------------------------------------------------------" ------- ------------------------------------------- --------------- " [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 BANK OF AMRICA, N. Plaintiff DECISION AND ORDER - against - Inde" No: 3824/11 NADER OHEBSHALOM and CDMS, INC., Motion Sequence No: 002 Original Retu Date: 02-22Defendants. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 4 were submitted on this Notice of Motion on Februar 2012: Papers numbered Notice of Motion and Affirmation in Support Affinnation in Opposition Reply Affirmation The motion by defendant Nader Ohebshalom (Ohebshalom) pursuat to CPLR 2221 (d) to reargue that branch of plaintiff s prior motion which sought to dismiss the fourh and fifth affirmative defenses and the first though si"th counterclaims asserted in defendant Ohebshalom answer is decided as follows: Pursuant to the Decision and Order of this Cour , dated December 13 2011 and entered on December 15 , 2011 , the motion by plaintiff Ban of America to dismiss the fourh though eighteenth affrmative defenses and the si" counterclaims asserted in the answer interposed by defendant Ohebshalom was granted to the e"tent that the fourh , fifth, eighth , ninth and eleventh through eighteenth affirmative defenses , as well as all si" of his counterclaims , were dismissed. [* 2] Defendant Ohebshalom seeks to reargue that par of plaintiff Ban of America s motion which resulted in dismissal of his si" counterclaims I and four and fift affirmative defenses , all of which seek to hold the plaintiff Ban liable for the actions of Paul Miler , an authorized Bentley dealership, d//a de facto and/or Bentley ofParsippany (Paul Miler) based on agent of plaintiff Ban of America. de jure the dealership s purorted status as 2 Defendant Ohebshalom predicates his request to reargue on the grounds that the Cour failed to apprehend that , as argued by defendant , under the terms of Retail Dealer Agreement between Paul Miler and plaintiff Ban of America, Paul Miler acted as Ban of America s agent; and the mere designation of Paul Miler as an " independent contractor" in the Agreement neither precludes nor supplants the " clear intent" to have Paul Miler act as Ban of America s agent. A motion to reargue is one based upon " matters of fact or law allegedly overlooked or misapprehended by the cour in determining the prior motion , but shall not include any matters of fact not offered on the prior motion. " CPLR 2221 (d)(2). Such a motion an unsuccessful is not designed to provide par with successive opportities to reargue issues previously decided, or to present arguents different from those originally presented. Dept 20 1 0), quoting McGil Rella 79 AD3d 979 980 Goldman 261 AD2d 593 , 594 (2 Dept 1999). The determination of such a motion lies within the sound discretion of the Cour. Corp. 71 AD3d 874 (2 Mazinov V. Veeraswamy Realty Dept 2010). Here , defendant Ohebshalom Yenom s motion is an attempt to The causes of action alleged in the counterclaims include: fraudulent inducement , conversion constructive trst , negligent misrepresentation and fraud. In his answer defendant Ohebshalom alleges that " Paul Miler was and is an authorized Bentley dealership in the business of marketing and sellng Bentley automobiles to the public at large though a system of authorized sales agents , including Nort Shore Motor Group, Inc. , defendant CDMS , Inc. and Rick Cohen. [* 3] reargue the same issues and facts previously considered and decided by the Cour. Notwthstading defendant Ohebshalom ' s assertions to the contrar, the finding by this Cour that Paul Miler was not an agent of plaintiff Ban of America with regard to the Ohebshalom transaction is not erroneous. Nor , under the circumstances , are discovery and witness depositions necessar to ascertin the precise natue of plaintiff Ban of America s relationship with Paul Miler. The language of the Retail Dealer Agreement which delineates the relationship between Ban of America and Paul Miler is unambiguous. The interpretation of a written agreement is within the province of the Cour. If the language of the agreement at issue is free from ambiguity, its meaning may be determined as a matter of law on the basis of the wrting alone , without resort to e"trinsic evidence. Generally, the contract is to be interpreted so as to give effect to the intention of the paries as e"pressed in the unequivocal language employed. Hickman Saunders 228 AD2d 559 , 560 (2 Dept 1996). As stated in the Decision and Order for which reargument is sought, the relationship between plaintiff Ban of America and Paul Miler is a contractual one governed by the terms of the Retail Dealer Agreement. Although defendant Ohebshalom correctly argues that an individual' s designation as an independent contractor in a contract does not preclude a finding that the individual also acted as an agent , and the terms " independent contractor" and "agent" are not mutually e"clusive , the inquiry does not end there. Here , the Retail Dealer Agreement unambiguously states that dealer (Paul Miler), when acting under the Retal Dealer Agreement , is an independent contractor, not an agent or representative of the Ban and has no e"press or implied right to bind the Ban of America in any maner whatsoever. [* 4] The December 13 2011 Decision and Order notes that plaintiff Ban of American did not supervise or control the work performed by Paul Miler, nor did Paul Miler act for plaintiff Ban of America, at its request or under its direction. The first page of the Agreement , in fact, welcomes the individual dealer to Ban of America s competitive programs for automobile financing and talks of a retail relationship between the dealership and Ban of America. It is well settled that an agency relationship generally results from the manifestation of consent by one par to allow another to act on his or her behalf and subject to his or her control and consent by the other to so act. Christie s Inc. 58 AD3d 469 471 (1 sl Dept Art Fin. Partners, LLC 2009). Independent contractors differ in the important respect that they are not subject to another control as are agents , employees or servants. 623 (1 sl 160 Water Street Associates, L.P. 94 AD3d Retta Dept 2012). " Whether one is an independent contractor or an employee depends on the indicia the most important of which is the right to control over the presence or absence of various agent irrespective of the manner in which the work is to be done. 186 (1 sl Szabados Quinn 156 AD2d Dept 1989). An independent contractor is a person who contracts with another to do something for him , but who is not controlled by the other or subject to the other s right to control him in the performance ofthe work. B. Mechanical Corp. 127 AD2d E.B.A. Wholesale Corp. 737 , 739 (2 Dept 1987). While the terms " independent contractor" (Anchor Sav. Bank Warner City Cable and " agent" Zenith Mortg. Co. 634 F2d 704 , 707 n. 2 Adelphi Univ. 27 AD3d 551 , 553 (2 (2 may not be mutually e"clusive Cir November 24 , 1980); Time Dept 2006)), here the Retail Dealer Agreement specifically states that Paul Miler is not an agent of plaintiff Ban of America and has no right to bind plaintiff. In the undersigned' s view, the cases on which defendant Ohebshalom relies are unavailng. None of the cases , with the e"ception of LFS Realty Co. Bank of NY. [* 5] Misc 3d 1717(A), 2011 N. Y. Slip Op. 50712(U) (N. language. This is not , however, a situation as is Sup. April 7 , in collecting payments and prosecuting t Bank ofN LFS Realty Co. that an intent is evident from the paries ' agreement that one 2011), contains such e)Cpress Y. where it can be said par is to act on behalf of another par liens such as a mortgage loan servicer would do. Ordinarly, a principal is not liable for the acts of an independent contractor. The most commonly accepted rationale in support of the rue is that one who employs an independent contractor has no right to control the maner in which the work is done. New York State Elec. Gas Corp. 81 NY2d 270 Wecker 273 (1993); Brothers Crossland Group, Inc. 92 AD3d 870 (2 Dept 2012). indicia In the absence of any that plaintiff Ban of American controlled the maner in which Paul Miler performed its obligations (work), or evidence that can be gleaned from the paries agreement that they intended that Paul Miler act as an agent of plaintiff Ban of America defendant Ohebshalom s motion to reargue is denied. The Cour notes that plaintiff Ban of America s motion was predicated on both CPLR 32211(a)(1) and (a)(7). defendant Ohebshalom The Retail Dealer Agreement is dispositive on the issue of agency and s claims grounded on the theory of respondeat superior. The foregoing constitutes the Decision and Order of the Cour. Dated: Mineola, New York May 22 2012 ENTER: ENTERED MAY 2 4 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE [* 6] Copies mailed to: Stim & Waruth , P. Attorneys for Plaintiff Wenger & Arlia, LLP Attorneys for Defendant

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