Troche v Espinosa

[*1] Troche v Espinosa 2016 NY Slip Op 50808(U) Decided on March 25, 2016 Supreme Court, Putnam County Marx, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 25, 2016
Supreme Court, Putnam County

Noel Troche, Plaintiff,

against

Ronald D. Espinosa and JOHN M. ZARCONE, JR., Defendants.



2538/09



Norman A. Kaplan, Esq.

Attorney for Plaintiff

111 Great Neck Road

Great Neck, New York 11021

Stuart A. Halper, Esq.

Attorney for Defendant Espinosa

105 Whitson Road

P.O. Box 295

Briarcliff Manor, New York 10510

Steinberg & Cavaliere, LLP

Attorneys for Defendant Zarcone

50 Main Street- Suite 901

White Plains, New York 10606
Paul I. Marx, J.

The following papers, numbered 1 to 4, were considered in connection with Plaintiff's Motion seeking an Order: pursuant to CPLR § 2221 granting renewal and reargument of its prior motion which resulted in an Order of this Court (Hon. Victor G. Grossman, J.S.C.) dated October 5, 2015 and upon the grant of renewal or reargument an Order: (1) "pursuant to CPLR 1015, substituting the party plaintiff"; (2) "pursuant to CPLR 3217, discontinuing the action as to defendant Ronald D. Espinosa"; and (3) "pursuant to CPLR §305(c), amending the caption."[FN1]

Notice of Motion/Affirmation In Support of Norman A. Kaplan, Esq., Attorney for Plaintiff, dated November 12, 2015/ Exhibits 1-5 1-2

Affirmation in Opposition of Robert P. Pagano, Esq., Attorney for defendant Zarcone, dated November 30, 2015/Exhibits A-C 3

Reply Affirmation of Norman A, Kaplan, Esq. dated December 16, 2015

/Exhibits 6-9 4

Upon reading the foregoing papers it is ORDERED that Plaintiff's motion to reargue is granted, and upon such reargument, the Order of October 5, 2015 is vacated, the matter is restored to the pre-note of issue calendar, the action is discontinued against Ronald D. Espinosa, the caption amended as set forth below and defendant is granted leave to serve an amended answer as provided for herein. The motion to renew is denied as moot.

Background

This action arises from a failed real estate transaction involving the now deceased Noel Troche, Ronald D. Espinosa and the deceased's former son in law, defendant John M. Zarcone, Jr., an attorney. Broadly stated, the complaint alleges that Zarcone, acting as an intermediary, brought Espinosa and the deceased together in a real estate transaction in which plaintiff sold his house to Espinosa. Zarcone, it is alleged, not only acted as the attorney for both parties without proper disclosures of potential conflicts of interest, but made assurances to the deceased of Espinosa's financial ability to purchase the property when, in fact, Zarcone knew that Espinosa could not afford to do so. As it turned out, Espinosa appeared at the closing $90,000 short of the purchase price. Consequently, according to the complaint, Zarcone urged the deceased to hold a second mortgage in that amount and to allow the transaction to close. Subsequently, Espinosa failed to meet his obligations under the first mortgage note and lost the house to the holder of that lien in a foreclosure action, simultaneously causing the deceased's second mortgage to be extinguished. This action, therefore, seeks damages against Espinosa for fraud and against Zarcone for both fraud and legal malpractice.

Procedural History

By Order dated October 5, 2015, the Hon. Victor G. Grossman, J.S.C. denied plaintiff's unopposed motion seeking an Order "pursuant to CPLR 1015, substituting the party plaintiff"; (2) "pursuant to CPLR 3217, discontinuing the action as to defendant Ronald D. Espinosa"; and [*2](3) "pursuant to CPLR §305(c), amending the caption. In denying the motion, the Court noted that "[o]n July 6, 2011, the Court [FN2] marked the case off calendar without prejudice when the parties failed to appear. Over the last four years, Plaintiff did not move to restore the matter to the court's calender for good cause shown." Exhibit 4. As such, Justice Grossman did not reach the merits of the motion, instead denying it as "moot".

The Instant Motion

Plaintiff now moves to renew or reargue the prior motion seeking similar relief.[FN3]

Defendant Zarcone, who failed to oppose the prior motion, opposes the motion to reargue and renew based on what he terms to be plaintiff's excessive delay in taking any action in connection with the prosecution of this action. Although he failed to cross move for any relief, presumably because the action has been marked off, an act that he incorrectly equates with dismissal, he now urges the Court to "... adhere to its decision and order of October 5, 2015 and this matter should remain dismissed." Affirmation of Robert P. Pagano, Esq. dated November 30, 2015 ¶ 2.

Plaintiff replies to defendant's opposition by attempting to justify the delay in the action for various reasons.

Applicable Law

CPLR §2221(d) provides, in pertinent part, as follows:

(d) A motion for leave to reargue:1. shall be identified specifically as such;2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; ...

Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted. Haque v Daddazio, 84 AD3d 940, 942 [2nd Dept 2011] (quoting Mazinov v Rella, 79 AD3d 979, 980 [2nd Dept 2010]). Rather, it is designed to allow a party to call to a Court's attention errors of fact or law committed by the Court.

CPLR §2221(e) states, in relevant part:

(e) A motion for leave to renew:1. shall be identified specifically as such;2. 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; and3. shall contain reasonable justification for the failure to present such facts on the prior motion.

A motion for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but "were not made known to the party seeking renewal, and consequently, [were] not made known to the court." Elder v Elder, 21 AD3d 1055, 1055 [2nd Dept 2005] (citing Matter of Progressive Northeastern Ins. Co. v Frenkel, 8 AD3d 390, 391 [2nd Dept 2004], quoting Brooklyn Welding Corp. v Chin, 236 AD2d 392 [2nd Dept 1997]). "Renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application." Mangine v Keller, 182 AD2d 476, 477 [1st Dept. 1992] (citations omitted). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation ...'." Renna v Gullo, 19 AD3d 472, 472 [2nd Dept 2005]; O'Dell v Caswell, 12 AD3d 492 [2nd Dept 2004].

Plaintiff seeks "renewal and reargument" of the October 5, 2015 Order, without moving to restore the action to the pre-note of issue calendar, the basis for Justice Grossman's denial of the motion as "moot" in the first instance. Despite this, plaintiff has addressed the reasons the case was not restored to the calendar after it was marked off in July 2011, the death of Mr. Troche and subsequent difficulty arranging for an administrator. Defendant has also addressed the reasons why the matter should remain "dismissed". Thus, if a motion to restore had been required, the parties have now addressed the issues relevant thereto. A motion to restore, however, was not, in fact required.

The Motion to Reargue/Renew

It has been held that where, as here, an action has been marked off the calendar simply because of a party's failure to appear for a scheduled conference, a motion to restore to the pre-note of issue calendar should be granted even despite extreme delay. See, Arroyo v Board of Education of City of New York, 110 AD3d 17 [2nd Dept. 2013].

In Arroyo, supra.,as here, the case was "marked off" the calendar for plaintiff's counsel's failure to appear at a conference. Twelve years later, plaintiff attempted to resurrect the action by moving to restore the case to the pre-note of issue calendar. Defendant cross moved to dismiss. On reargument of its original decision and order which denied plaintiff's motion to restore and granted the Board of Education's motion to dismiss, Supreme Court reversed itself and granted plaintiff's motion to restore and denied the defendant's motion to dismiss. On appeal, the Second Department, relying on Lopez v Imperial Delivery Serv., 282 AD2d 190 [2nd Dept 2001] and the exhaustive review of calendar control devices therein, affirmed. In so doing the Court reaffirmed that neither of the two CPLR provisions relating to calendar control, CPLR 3404 and CPLR 3216, nor Court Rule 202.27 mandated dismissal of a pre-note of issue action for non appearance at a conference even after lengthy delay.

"In Lopez, we made clear that none of these devices applies to a pre-note-of-issue case where, as here, there has been no order dismissing the complaint pursuant to 22 NYCRR 202.27, and the defendant has never made a 90—day written demand on the plaintiff to serve and file a note of issue pursuant to CPLR 3216. (Citations omitted) *19.

The Court continued:

"Since this action was never properly dismissed, there was no need for a motion to restore, and the Board's motion to dismiss based on laches was properly denied because it [*3]failed to comply with the 90—day written demand requirement, a condition precedent to dismissal of the action for general delay" Id. *21.

Similarly, the Court rejected the Board's attempt to avoid the holding in Lopez by relying on the doctrine of laches as the basis for dismissing the complaint. Id.

Thus, it is clear that appellate precedent does not require a motion to restore a case to the pre-note of issue calendar where it has been "marked off" and that such a marking is not the equivalent of a dismissal. In rendering the October 5, 2015 Order, the Court deemed plaintiff's motion "moot" based on the failure to move more expeditiously to restore the case to the calendar and the absence of a demonstration of "good cause". This was an incorrect application of applicable law with respect to the requirement for restoration of a pre-note of issue case. Put differently, the Court erred in equating the "marking off" with dismissal of the action. As such, this Court grants plaintiff's motion to reargue and upon reargument, the Order of October 5, 2015 is vacated. The motion to renew is superfluous and is denied.[FN4]

The Court now turns to the merits of plaintiff's application.

Motion to Substitute Party Plaintiff

Plaintiff's motion to substitute party plaintiff is granted. CPLR §1015 provides that if a party dies and the claim brought by him/her is not extinguished by the death, the Court shall order substitution of the proper parties.

Plaintiff has provided proof that Letters of Administration were issued to Eva Troche by the Hon. James T. Rooney, Judge of the Putnam County Surrogate's Court on March 23, 2013. Exhibit 2. As such, the Administratrix is the proper party to be substituted herein.

Defendant does not oppose the substitution of the party plaintiff, rather, he contends that the delay in obtaining an administrator and substitution warrants dismissal under CPLR § 1021 which requires such substitution to take place in a "reasonable time". Affirmation of Robert P. Pagano, Esq. dated November 30, 2015 ¶ 9 et seq. However, at no time prior to plaintiff's June 2015 motion did defendant move to dismiss for the delay in substitution. Having failed to do so, it cannot, after plaintiff moves for substitution, argue that dismissal is warranted. Put differently, had defendant truly felt aggrieved by plaintiff's failure to substitute party plaintiff, he could have moved the Court for appropriate relief. That he was aware of the necessity for such a motion is evidenced by counsel's letter to Justice Nicolai in October 2012 in which he states "[g]iven that plaintiff's counsel has failed to take any action to substitute an estate representative, a motion can be brought under CPLR 1021for dismissal. ... it is respectfully requested that the Court schedule a conference to ascertain plaintiff's counsel's intentions with the further prosecution of this case." Exhibit C. It does not appear that Justice Nicolai scheduled such a conference and no motion was brought.

Thus, plaintiff's motion to substitute the Administratrix of the deceased plaintiff's estate as party plaintiff is granted.

Motion to Amend Caption

Although plaintiff submitted two different proposed amended captions in his two sets of moving papers, only the named plaintiff in the caption contained in the second application is correct. Defendant has not, nor could he reasonably do so, opposed the amendment of the caption to reflect the substitution permitted above. As such, that portion of the motion is granted.

Plaintiff also proposes to amend the caption to reflect a stated intention to discontinue against Espinosa. He also seeks to discontinue the action against Espinosa. Although it is not stated in his moving papers, counsel's letter to Justice Nicolai in June 2011 indicates that plaintiff settled with Espinosa. Exhibit 5. Again, defendant has not opposed the deletion of Espinosa from the caption. Nor has Zarcone opposed the discontinuance against him.

The Court has not been provided with a copy of defendant's pleadings and thus, cannot determine if Zarcone asserted a cross claim against Espinosa or if Zarcone would now be entitled to assert a set off under General Obligations Law § 15-108 for the amount paid to plaintiff for his release or his percentage of responsibility, if any. If, indeed, plaintiff settled with Espinosa, leave is granted to Zarcone to serve an amended answer including such other defenses as may arise from the Espinosa settlement. Any amended answer shall be served within 20 days of the date of this Decision and Order.

Plaintiff's motion to file a partial discontinuance of the action against Espinosa is granted, without opposition. However, Espinosa's name will remain in the caption pending a determination at trial of whether any alleged liability he may have is an issue to be submitted to the trier of fact.

Accordingly, the caption of this case shall be as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF PUTNAM

————————————————————--—————————————-X

EVA TROCHE, as Administrator of the Estate of

NOEL TROCHE, Deceased, Plaintiff,Index No. 2538/09

-against -

RONALD D. ESPINOSA and JOHN M. ZARCONE, JR.

Defendants.

——————————————————————————————-—-——-X

The parties are directed to use the above caption on all papers submitted hereafter.

This matter is set down for a discovery status conference to be held before the undersigned on May 10, 2016 at 9:30 a.m. Counsel shall communicate with each other before that date to ascertain what discovery remains to be completed and to develop a reasonable schedule for completion thereof. The Court expects the matter to be trial ready by the time of the conference.

The foregoing constitutes the Decision and Order of the Court.

Dated: March 25, 2016

Carmel, New York

__________________________________

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1:Generally, motions to renew and reargue are referred to the Justice who rendered the Order being reconsidered. On January 1, 2016, Justice Grossman was reassigned to another county and this Court assumed his caseload, along with all pending motions. As such, Justice Grossman is unavailable to hear the instant motion. In addition, because the motion was decided on default, this Court is a proper Court to hear and determine it. CPLR § 2221 (a)(1).

Footnote 2:Hon. Francis A. Nicolai, JSC, retired.

Footnote 3:The Court notes that plaintiff initially sought to amend the caption only by deleting Espinosa as a named party. In this motion, plaintiff now seeks to amend the caption to also replace the deceased's name with that of the Administrator of the Estate. Compare Affirmation of Norman A. Kaplan, Esq. dated November 12, 2015 *8 with Affirmation of Norman A. Kaplan, Esq. dated June 25, 2015 *8.

Footnote 4:As justification for some of the delay, plaintiff's counsel asserts that he was threatened by Zarcone in an email in May 2013, following which he opted to "lay low" with respect to this case. The Court elects not to comment on the e mail sent by Zarcone to plaintiff's counsel, except to state that it is disturbing and gives the Court pause as to Zarcone's fitness to practice law. See Matter of Cavanaugh, 189 AD2d 521 [1st Dept 1993].