Board of Mgrs. of the Sunrise Manor Condominium Assn. v Sunrise Enter., Inc.

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Board of Mgrs. of the Sunrise Manor Condominium Assn. v Sunrise Enter., Inc. 2017 NY Slip Op 31349(U) May 22, 2017 Supreme Court, Queens County Docket Number: 703755/14 Judge: Allan B. Weiss 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. [*FILED: QUEENS COUNTY CLERK 05/25/2017 09:51 AM 1] NYSCEF DOC. NO. 188 INDEX NO. 703755/2014 RECEIVED NYSCEF: 05/25/2017 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE ~\ \.._..._ ~ '-- \ ~ 5 IA Part 2 Justice BOARD OF MANAGERS OF THE SUNRISE MANOR CONDOMINIUM ASSOCIATION, INDIVIDUALLY AND ON BEHALF OF ALL UNIT OWNERS OF THE SUNRISE MANOR CONDOMINIUM, Index No: 703755/14 Motion Date: January 10, 2017 January 12, 2017 Motion Seq. No. 5 & 6 Plaintiff, -againstSUNRISE ENTERPRISE, INC., ARK.ADY ZIRKIEV, ZOYA AKSAKALOV A, Defendants. ARK.ADY ZIRKIEV, Third-party Plaintiff -againstTIPPS CONS, INC. a/k/a TIPP ROOFING COMPANY, BUSKO CORP., VULKAN HV AC, INC., MERCON CONTRACTION CORP., KINGS ELECTRIC CO., INC., and BLC DRYWALL CORP., Third-party Defendants. The following papers numbered 1 to 36 were read on this motion by defendant, Zoya Aksakalova (Seq. 5), to dismiss plaintiffs complaint as against it, pursuant to CPLR 3211 (a) (7), and cross motion by plaintiff for leave to amend the complaint, pursuant to CPLR 3025 (b ), along with an application by plaintiff (Seq. 6), seeking leave to reargue a prior decision of this court, pursuant to CPLR 2221 ( d). 1 of 4 [*FILED: QUEENS COUNTY CLERK 05/25/2017 09:51 AM 2] NYSCEF DOC. NO. 188 INDEX NO. 703755/2014 RECEIVED NYSCEF: 05/25/2017 Papers e-File Numbered Seq. 5 Notice of Motion - Affirmation - Exhibits ...................................... . 121 - 129 Answering Affirmation - Exhibits .................................................... . 145 - 157 Reply Affirmation - Exhibits ............................................................ . 177 - 180 Notice of Cross Motion - Affirmation - Exhibits .............................. . 145 - 162 Answering Affirmation - Exhibits .................................................. .. 168 - 173 Answering Affirmations - Exhibits ................................................... . 174-176 Reply Memorandum of Law .............................................................. . 181 Seq. 6 Order To Show Caue - Affirmation - Exhibit .................................... . Answering Affirmation - Exhibits .................................................... . Answering Affirmation - Exhibits .................................................... . Reply Memorandum of Law ............................................................... . 131 - 132 140 - 142 134 - 137 163 - 167 138 - 139 182 - 183 Upon the foregoing papers, it is ordered that Aksakalova's motion to dismiss, plaintiffs cross motion to amend, and plaintiffs order to show cause to reargue, are determined as follows: In this action for, among other things, breach of contract, defendant, Arkady Zirkiev, moved to dismiss the First, Second and Fourth Causes of Action - three of the four causes of action in the complaint-which motion was granted by order, dated May4, 2016, and filed on May 10, 2016. The result of such decision was that Zirkiev was no longer a defendant in this case, as the Third Cause of Action was for breach of contract solely against the "architect" defendants , who had been stipulated out of the case in January 2016. Plaintiff moved for leave to "replead/amend" the complaint, pursuant to CPLR 3211 (e) and 3025 (b ), which motion was denied by decision dated October 5, 2016, and filed October 11, 2016. Plaintiff now moves for leave to reargue that motion, pursuant to CPLR 2221 (d). Defendant, Aksakalova, moves to dismiss plaintiffs complaint, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action against it. Plaintiff opposes, and cross-moves, pursuant to CPLR 3025 (b), to amend its complaint. Plaintiff submitted the instant order to show cause, pursuant to CPLR 2221 (d), seeking leave to reargue its denied motion to replead or amend its complaint, under CPLR 3211 (e) or 3025 (b), maintaining that the court was mistaken in its interpretation of the applicable law, and failed to consider, or misinterpreted, the statements in the supporting papers and pleadings regarding the necessary elements of the proposed causes of action. -2- 2 of 4 [*FILED: QUEENS COUNTY CLERK 05/25/2017 09:51 AM 3] NYSCEF DOC. NO. 188 INDEX NO. 703755/2014 RECEIVED NYSCEF: 05/25/2017 "Initially, it should be noted that, regardless of statutory time limits concerning motions to reargue, every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action" (Liss v Trans. Auto Sys., 68 NY2d 15, 20 (1986]; see Butler v County ofSuffolk, 146 AD3d 853 [2017]). Even when a motion is "technically untimely under 2221 (d) (3), a court has discretion to reconsider its prior ruling" (HSBC Bank USA N.A. v Halls, 98 AD3d 718, 721 [2012]; see Terio v Spodek, 63 AD3d 719 [2009]; Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636 [2005]). Consequently, although plaintiff's motion for leave to reargue was served beyond the applicable 30-day statutory limit, the court will consider such motion. Leave to reargue is warranted herein as plaintiff has demonstrated that "the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision" (Schneiderv. Solowey, 141AD2d813, 813 (1988]; see Markovic vJ&A Realty, LLC, 124 AD3d 846 [2014]; Vaughn v Veolia Transp., Inc., 117 AD3d 939 [2014]; Ahmed v Pannone, 116 AD3d 802 (2014]). Movant has established that, in deciding plaintiff's prior motion, the court misapplied a controlling principle oflaw, (see Vaccariello v Meineke Car Care Center, Inc., 136 AD3d 890 [2016]; Cioffi v S.M Foods, Inc., 129 AD3d 888 [2015]), by mistakenly denying plaintiff's motion to replead, pursuant to CPLR 3211 (e), despite the permissible and applicable language of the court- cited cases of 175 E. 74'h Corp. v Hartford Acc. & lndem. Co., 51 NY2d 585 [1980]; Canzano v Atanasio, 118 AD3d 837 [2014]; and Janssen v Incorporated Vil. ofRockville Ctr., 59 AD3d 15 (2008). Upon reargument, plaintiffhas demonstrated its entitlement to rep lead. The proposed amended complaint does not propound a new theory of law not previously advanced in the original motion papers (see Simpson v Loehmann, 21NY2d990 (1968]; Mazinovv Rella, 79 AD3d 979 [2010]; Shallash v New Island Hosp., 66 AD3d 988 [2009]). The standard to be applied to a request for leave to replead, i.e., such relief should be freely granted absent significant prejudice or surprise to the opposing party, unless the proposed amendment is patently devoid of merit or palpably insufficient (see Jackson v Gross, - AD3d -, 2017 NY Slip Op. 03498 (2d Dept. 2017]; Mials v Millington, -AD3d-, 2017 NY Slip Op. 03168 [2d Dept. 2017]; Mahler v North Shore Camp, LLC, 145 AD3d 678 (2016]; Galbraith v Westchester County Health Care Corp., 113 AD3d 649 [2014]), is consistent with the standard governing motions for leave to amend under CPLR 3025. In the case at bar, plaintiff's proposed amendments are not devoid of merit or palpably insufficient, andZirkiev "cannot legitimately claim surprise or prejudice ... (as) [t]he proposed amendments are premised upon the same facts, transactions, or occurrences as alleged in the original complaint" (MBIA Ins. Corp. v J P. Morgan Securities, LLC, 144 AD3d 635, 639 (2016]; see Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15 (2008]). "The legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt" (MBIA Ins. Corp. v J P. Morgan -3- 3 of 4 [*FILED: QUEENS COUNTY CLERK 05/25/2017 09:51 AM 4] NYSCEF DOC. NO. 188 INDEX NO. 703755/2014 RECEIVED NYSCEF: 05/25/2017 Securities, LLC, 144 AD3d 635, 639 [ 2016], quoting Sample v Levada, 8 AD3d 465, 467468 [2004]). As such, plaintiffs application for leave to replead is granted, and the order of October 5, 2016, dismissing the action as against defendant, Zirkiev, is vacated. With regard to the motion by defendant, Aksakalova, to dismiss plaintiffs action against her, plaintiff has, therein, cross-moved for leave to amend its complaint, pursuanrt to CPLR 3025. Necessarily addressing plaintiffs cross motion first, it has been abovedetermined, "within the Supreme Court's broad discretion" (Freeman v City ofNew York, 111 AD3d 780, 783 [2013] that plaintiffs "proposed amendment was neither palpably insufficient nor patently devoid of merit, and the (defendant) did not demonstrate that it would suffer prejudice or surprise ifleave to amend were granted" (Peerless Ins. Co. v Micro · Fibertek, Inc., 67 AD3d 978, 980 [2009]; see DeLuca v Pecoraro, 109 AD3d 636 [2013]; Spodek v Neiss, 104 AD3d 758 [2013]). As such, plaintiffs cross motion for leave to amend its complaint is granted. Having granted plaintiff leave to amend the complaint, "the amended complaint superseded the original complaint" (Poly Mfg. Corp. v Dragonides, 109 AD3d 532 [2013]). Consequently, Aksakalova's motion to dismiss the original complaint is denied as academic (see Gatlin v City ofNew York, 90 AD3d 605 [201 l];Bobash, Inc. v Festinger, 57 AD3d 464 [2008]; De Pasquale v Est ofDePasquale, 44 AD3d 606 [2007]). Accordingly, plaintiffs Order to Show Cause for leave to reargue is granted, and upon reargument, the October 5, 2016 Order is vacated and plaintiffs motion for leave to replead/amend its complaint is granted. Plaintiffs cross motion for leave to amend its complaint is granted. Defendant, Akksakalova's motion to dismiss is denied as academic. Plaintiff shall file a copy of the amended complaint with the Clerk of the Supreme Court within thirty (30) days of entry of this Order and thereafter serve such pleading upon all parties pursuant to the applicable sections of the CPLR. A copy of this Order is being mailed to the attorneys for the parties. ---~A'--------- Dated:May<2., 2017 J.S.C. -4- 4 of 4

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