Maximum Income Partners, Inc. v Webber
Annotate this CaseDecided on September 27, 2016
Supreme Court, Monroe County
Maximum Income Partners, Inc., Plaintiff,
against
Carl E. Webber, WEBBER ENTERPRISES, INC., MARIO CURCIO and NICOLE CURCIO, Defendants.
14/12829
Sammy Feldman, Esq.
Attorneys for Plaintiff
Rochester, New York
Derrick A. Spatorico, Esq.
Attorney for Defendants Curcios
Rochester, New York
Richard A. Dollinger, J.
In this application, the plaintiff seeks to renew a motion for summary judgment in which this Court decided the priority of liens on a contested property. The Court, in resolving the prior motion, held that a judgment lien had priority over a first mortgage on the property.
In seeking to review the Court's determination, the plaintiff invokes CPPLR 2221(e) which permits the Court to review its prior decision if there are "new facts not offered on the prior motion" and "reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e). In this instance, the plaintiff does produce new facts in the form of two affidavits from two attorneys, who attest, collectively, that there was an agreement to release the judgment lien from the subject property more than three years before the Court's decision. The impact of the release of the judgment lien would negate the judgment as a lien on the subject property and permit the mortgage to assume first priority in the distribution of any sale proceeds.
Initially, the plaintiff requests that this Court order the production and filing of the alleged [*2]lien release. This request is without justification. The alleged "agreement" to deliver a lien release involves parties who are not currently before the Court. There is no breach of contract claim before the Court. The request is denied.
Second, while the facts regarding the alleged "agreement to release the lien" may be considered "new facts" from the plaintiff's perspective, they are not "new"within CPLR 2221(e). A "new fact" is one that could not be produced with "due diligence" by the moving party. Priant v New York City Tr. Auth., 36 N.Y.S.3d 201 (2d Dept 2016)(the movant bears a heavy burden of showing due diligence in presenting the new evidence). 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. Id., see also Shouse v. Lyons, 4 AD3d 821 (4th Dept 2004); Matter of Commercial Structures v. City of Syracuse, 97 AD2d 965 (4th Dept 1983). In this matter, the alleged "new facts" are found in an affidavit from an attorney who represented a former owner of the land. This attorney submitted an affidavit in the prior motion and made representations, based on his recollection, that the lien had been released as part of a "global" settlement of the lien dispute. In his newly-submitted affidavit, he details an account of a supposed agreement with the defendant's attorney, now representing the holder of judgment lien. The attorney for the former owner of the land now claims the subject lot was excluded form the global settlement and adds that only later did he negotiate a lien release for the subject property. The attorney, in essence, has supplemented his prior affidavit, offering additional facts regarding the specific "agreement" regarding release of the lien on the underling property. In the papers submitted by the plaintiff, there is simply no justification for this attorney's failure to present the specific facts regarding the release involving the specific lot in question at the time when the original motion for summary judgment was brought. As a bottom line, the attorney for the judgment creditor was asked for an affidavit by the plaintiff in the initial motion and submitted one, omitting the specific facts relating to the lot which is the subject of this dispute. The attorney, perhaps with his recollection now refreshed, submits a second affidavit, containing additional facts. Under CPLR 2221(e), there is no second "bite at the apple" permitted.
Finally, this Court notes that the role of the defendant's attorney complicates this matter. According to the plaintiff, the judgment debtor's counsel negotiated an agreement to release the lien, forwarded a check payable to the then creditor's attorney — now, the defendant's counsel, who, at that time, was representing another investor in the property. The check was forwarded as part of what the creditor's attorney attests was an agreement with the current defendant's counsel that he would deliver lien releases for the subject property upon negotiation of the check. The check was eventually made payable by the judgment creditor's attorney to the defendant's counsel, who, in turn, endorsed the check to the investor and not to the judgment creditor. While this Court has heard claims regarding the conduct of the defendant's current counsel and understands that the mortgage holder believes that this attorney's failure to deliver the anticipated lien releases should be a factor in this Court's review of this matter, the Court declines to opine, in any regard, on that legal question. As noted earlier, the alleged failure to deliver lien releases, which the defendant's counsel heatedly denies, is not before this Court. Furthermore, while the mortgage holder seeks legal fees because of the conduct of defense counsel in this matter, that claim is denied.
This Court also declines to cancel a $9,900 plumbing credit granted in the earlier motion. [*3]The homeowner in the original motion set forth a claim for the credit. Now, after the Court granted the credit, the plaintiff produced an affidavit from the former developer in which he claims there was no agreement with the defendant to grant the credit. There is no "reasonable explanation" for the failure to present these facts before the decision on the initial motion. CPLR 2221(e).
SUBMIT ORDER ON NOTICE.
Dated: September 27, 2016
___________________________________
Richard A. Dollinger
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