Rosenfeld v Schreiber

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Rosenfeld v Schreiber 2016 NY Slip Op 32315(U) November 22, 2016 Supreme Court, New York County Docket Number: 650360/2014 Judge: Jeffrey K. Oing 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 COUNTY OF NEW YORK: COMMERCIAL PART 48 ~--------------------------------------x ;I ., pR. STEVEN ROSENFELD, Plaintiff, r Index No.: 650360/2014 -against-. Mtn Seq. No. 006 ,.JOEL SCHREIBER, DR. SAMUEL WAKSAL, :,KADMON CAPITAL, LLC & KADMON :rcoRPORATION' LLC DECISION AND ORDER Defendants, '---------------------------------------x I .JEFFREY K. OING, J. : Plaintiff Steven Rosenfeld moves, pursuant to CPLR 2221, for an.order granting reargument of this Court's decision and order idated July 21, 2016 (the "Order"), which denied his motion to 1) compel defendants to produce: 1 (1) documents relevant to any !other fund raising agreements defendants may have had with third i 'parties; and (2) certain documents created after the filing of .:the complaint (NYSCEF Doc. No. 183). :, To sustain a motion for reargument, plaintiff must ;ctemonstrate that the Court either: (1) ·overlooked. or i 11 • ]misapprehended the relevant facts; or (2) misapplied a !controlling principle of law (William P. Paul Eguip. Corn. v ' jKassis, 182 AD2d 22, 27 [1st Dept 1992]). New arguments that were not previously advanced may not be brought up on reargument, 2 of 5 [* 2] Page 2 of Index No.: 650360/2014 ' Mtn Seq. No. 006 hor may a reargument motion be used as a vehicle to repeat, .~eargue what has already been considered and determined ~oley v Roche, 68 AD2d 558 4 or (Id. ; [1st Dept 1979]). In the Order that is the subject of this reargument motion, i [ held that demanded documents were not relevant to this action. !plaintiff argues . . ~acts because the Order incorrectly stated that the alleged ii ~reach ~ that I overlooked or misapprehended relevant of contract occurred "in or around July 2009," when,. in ;fact, that was the date when the contract was initially formed. :This argument is unavailing. The alleged breach necessarily occurred prior to the filing ,of the_ complaint, and virtually all.of the events relevant to the ' 1 \ I breach of contract claim (the execution of the contract and :plaintiff's fulfillment of his obligations thereunder) ,occurred . ./ ,. in late 2009 (Second Am. Compl., ~~ 33-34). As such, the post- ,, :complaint documents demanded by plaintiff are not reasonably ilikely to be relevant evidence to his breach ·of contract or ;quantum meruit claims. :i Relatedly, while plaintiff argues that the Order overlooked requests regarding communications between ,1 ,, 'i defendants' counsel after commencement -of this action, these idocuments were encompassed by the Order's 4etermination that 'post-complaint documents are not relevant. I t 3 of 5 [* 3] i ~ i Page 3 of Index No.: 650360/2014 Mtn Seq. No. 006 4 Finally, plaintiff argues that many of the "subject [document] requests seek relevant information irrespective of date" (Plaintiff's Memo. of Law~, p. 7). A review of this krgument demonstrates that it is ~upported by conclusory I Such assertions are insufficient to support a motion assertions. :1 I , for reargument because they fail to establish that I either I: ~verlooked or misapprehended the relevant facts or misapplied a ~controlling principle of law. -\ II I Accordingly, that branch of plaintiff's motion seeking lreargument is deni~d. Plaintiff also moves for an order granting renewal. A :renewal motion requires that, inter alia, it is "based upon new !facts not offere~ on the p~ior motion that would 6hange the prior 1i ldetermination (CPLR 2221[e]) Here, plaintiff seeks again production of documents ,concerning the fund raising agreements between defendants and ii lthird parties. ~ i The Order denied plaintiff's application for this discovery demand because his complaint did not allege that the !agreement between the parties contained any exclusivity provision 1 regarding fund raising. Plaintiff has now amended his complaint .1 !to assert that such an exclusivity provision existed. Given ·defendants' pending motions to dismiss the third amended 4 of 5 [* 4] i! i i Ii ! ,i Index No.: 650360/2014 i Seq. No. 006 Page 4 of 7tn !I' I 4 . i &,omplaint, and to stay discovery, this brahch of plaintiff's I . . ~otion seeking renewal is denied without prejudi~e to renew after 'I the determination of defendants' dispost,ive motions. i i Accordingl~, it is :1 ;I ,) ORDERED that plaintiff's motion is ~enied. !I I ~ This memorandtim opinion constitutes the decision and order of the Court. i\ ~ Dated: \\ ( )-'2., ( l~ :I ,, HON. JEFFREY K. OING, J.S.C. JEFFREY K. OING, I :I J.S.C~ ,f I :1 I. .• 5 of 5

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