Melcher v Greenberg Traurig LLP
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Melcher v Greenberg Traurig LLP 2017 NY Slip Op 31839(U) September 5, 2017 Supreme Court, New York County Docket Number: 650188/2007 Judge: O. Peter Sherwood 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: NEW YORK COUNTY CLERK 08/31/2017 03:50 PM 1] NYSCEF DOC. NO. 430 INDEX NO. 650188/2007 RECEIVED NYSCEF: 08/31/2017 SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49 -------------------------------------------X JAMES L. MELCHER, DECISION AND ORDER Index No. 650188/2007 Mot. Seq. No.: 020 Plaintiff, -against- GREENBERG TRAURIG LLP and LESLIE I>. CORWIN, Defendants. -- - - - - - - - - - -- - - - - - - - - - - - - - - - - -- - -- - - - - - - - - -- -x 0. PETER SHERWOOD, .I.: This action was filed in June 2007, alleging that defendants made misrepresentations about an alleged May 1998 \.Vritten amendment to the parties' operating agreement (the Amendment) and misled the court in an underlying action, Afelcher v Apollo lvfedical Fund Management LLC and Brandon Fradd. Index No. 60404 7/2003 (the Apollo Action). The history oflhis case and of the underlying action was rect:ntly described by the First Department in Melcher v Greenberg Traurig LLP (135 AD3d 547, 547-50 fl st Dept 20161) and Vlill not be recounted hert:. This motion sequence number 020 seeks leave to rcargue certain motions in limine and to stay trial of the case. THE INSTANT MOTION When the motions in limine were heard, this court determined that the expert testimony on Melcher's damages claim were to be limited to fees earned after February 17, 2004, when the alleged misrepresentation was made in a court filing. The court also observed that not all of the legal st:rvices rendered by plaintiffs counsel after the actions complained 110\v from the alleged deceit 1 (Decision and Order, NYSCEF Doc. No. 424 at p. 3 ). The court also ruled that the difference between the amount of the judgment and the amount finally collected in settlement of the underlying action could not be recovered here as tht: causal connection between the deceit and the um.:ollcctable damages is "entirely speculative (see id at p. 2)2 . The proposed testimony The court made no ruling as to which party has the burden of proving what portion orthe fees paid are not ··excess legal tees". 2 Testimony by Mr. Lynch who was not being offered as an expert witness, was barred as a consequence of this ruling. The court did not bar any claim for damages based on the time value of money. an issue as to which he was 1 not being offered to testify. 1 2 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 03:50 PM 2] NYSCEF DOC. NO. 430 INDEX NO. 650188/2007 RECEIVED NYSCEF: 08/31/2017 of four experts, including Mr. Lupkin was rejected, although the parties were granted leave to propose revised expert reports and testimony consistent with the ruling. Concluding that the amount of potential damages would be greatly reduced as a result of the decision, Melcher now moves to stay the trial pending appeal to the First Department. He also moves for renewal and reargument. Melcher argues that defendants' deceit caused a delay in his obtaining a judgment and his inability to collect the full amount of the jury award. Melcher claims Ama(fitano is <lispositive on this point, as in that case, the falsified documents created ··issues of fact" and successfully caused the reversal of a motion to dismiss (Memo at 4-5). Damages in that case included all legal fees from the time of the complaint (id, citing Ama(fltano v Rosenberg, 533 F3d 117. 125 [2d Cir 2008], certified question accepted, 11 NY3d 728 12008], and cert[fied question answered, 12 NY3d 8 l2009] and Ama(fitano v Rosenberg, 572 F3d 91, 92 (2d Cir 20091 ["because the central claim of the complaint was predicated upon a misrepresentation of fact, and because the plaintiffs were obligated to defend or default in response to that complaint and necessarily incur legal expenses as a consequence, those expenses may be treated as the proximate result of the misrcpresentation"][internal quotations omitted!). Melcher notes that in this case the First Department held that "plaintiff here seeks to recover lost time value of money and the excess legal expenses incurred in the Apollo action as a proximate result of defendants' alleged deceit; this course of action is permissible (.Melcher t' Greenberg Traurig LLP, 135 AD3d 54 7, 5 54 [I st Dept 2016]). Melcher contends that all legal fees and costs incurred after the document was falsified to avoid the dismissal of fradd's case are "'excess legal fees" (Memo at 8). If Fradd's pleadings in the underlying case had been struck for Fradd's presentation of the falsified document, there would have been no excess legal fees (id. at 8-9). Melcher argues that the defendants' deceit went to the central issue in the underlying case, and that he should be allowed to present his damages theory to the jury and allow them to determine what damages are related to the Amendment (id. at 9). He observes that the jury instruction only requires the violation to be "a substantial factor in bringing about the injury" (id. at 12, quoting PJI 2:25). 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 03:50 PM 3] NYSCEF DOC. NO. 430 INDEX NO. 650188/2007 RECEIVED NYSCEF: 08/31/2017 Melcher further claims that the decision on the motions in liminc, as well as the motion for leave to renew and to rearguc, if it is granted, arc appealable as of right, pursuant to CPI .R 5701 (Memo at 13-14). The motion is accompanied by atlidavits of James Melcher and his spouse, April Benasich, who ask that the jury trial, currently scheduled for sixteen trial days commencing on September 27, 2017, be adjourned and a stay be ordered so that an appeal may be prosecuted. Ms. Benasich asks the court '·to take into account the real world, personal consequences of the situation ... and stay the case so lMelcherl can go to the appeals court and settle the question'' (NYSCEF Doc. No. 415, ~ 5). Defendants first point out that Melcher has failed to introduce any new facts not kno\vn at the lime of the original motion, and therefore the motion to renew must fail (Opp at 4 ). Defendants also argue that the motion to reargue fails, as the court squarely addressed and distinguished the Ama{fitano case in the prior hearing (id. at 7). The Amendment was not the central issue in the underlying case, as the case proceeded to trial without it, and many of the claims and defenses did not relate to that document (id. at 8). Melcher's argument that the underlying case would not have proceeded without the successful deceit at the time of the motion to dismiss is a new one (id. at 9). further, it is not clear that defendants were required to havt: Apollo Management and rradd default on Melcher's motion to strike. I lad defendants known the Amendment was fraudulent, defendants would have been prohibited from using the document but could not have revealed that information, and could have made other arguments (id. at 11 ). In any event, it is entirely speculative whether that court when presented with proof of the deceit, would have struck the Apollo Management defendants' pleadings had different arguments been made (id. at 14). Defendants note that Melcher has admitted that the uncollectable damages were not proximately caused by the alleged deceit (id. at 17, citing transcript from July 18, 2017, NYSCEF Doc. No. 411, at 44). Defendants also contend that the decision on the motions in limine to exclude the opinions of Lupkin and Lynch is not appealable, as it is "[a]n evidentiary ruling made before trial [which I is generail y reviewable only in the context of an appeal from the judgment rendered 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 03:50 PM 4] NYSCEF DOC. NO. 430 INDEX NO. 650188/2007 RECEIVED NYSCEF: 08/31/2017 after trial" (Opp at 22, quoting Rivera v New York Health and /losps. Corp .. 38 AD3d 476. 476 I 1st Dept 20071). DISCUSSION A. Motion to Renew A motion for leave to renew must be based on evidence establishing .. new facts not offered on the prior motion that would change the prior detennination" (CPLR § 2221 [e J [21). as well as "reasonable justification'" for not offering these facts previously (CPLR § 2221 le] [3]: CLP Leasing Co. v Nessen, 27 AD3d 291, 292 [1st Dept 2006]). Although, upon a motion for renewal seeking consideration of previously available but unsubmitted evidence, the movant is generally required to proffer a reasonable excuse for its failure to submit such evidence (see. Burgos v City of New York, 294 AD2d 177 11 st Dept 20021; Chelsea Piers Management v Forest Electric Corp .. 281 AD2d 252 [I st Dept 200 l ]), emerging precedent in the First Department is that a motion to renew can be granted in the exercise of the court's discretion, even where new evidence was readily available to the moving party on the earlier motion and the only excuse prollered for the failure to furnish such evidence to the court is inadvertence or ignorance or even when no excuse is offered (see, Trinidad v Lantiqua, 2 AD3d 163 fl st Dept 2003 l; Mejia v Nanni, 307 AD2d 870 [1st Dept 2003]). "Nevertheless, 'lal 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"' (Allstate Ins. Co. i· Liberty Mut. fns. Co., 58 AD3d 727. 728 [2d Dept 2009], quoting Elder v Elder, 21 AD3d 1055 [2d Dept 20051). Melcher has provided no new facts not offered on the prior motion. Accordingly, the motion to renew fails. B. Motion to Rcargue The standards for reargument arc well settled. '·A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sotmd discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision" (William P. Pahl Equip. Corp. v Kassis. 182 AD2d 22. 27 I Jst Dept 1992] (quotations omitted]). Motions for reargument must be based upon facts or law overlooked or misapprehended by the court on the prior decision (see CPLR § 2221; Mendez v Queens Plumbing SuppZv. Inc.. 39 /\D3d 260I1st Dept 2007]; Carillo v PM Realty Group, 16 4 5 of 6 [*FILED: NEW YORK COUNTY CLERK 08/31/2017 03:50 PM 5] NYSCEF DOC. NO. 430 INDEX NO. 650188/2007 RECEIVED NYSCEF: 08/31/2017 AD3d 611 f2d Dept 2005]). The determination to grant leave to reargue lies \Vithin the sound discretion of the court (see Veeraswamy Really v Yenom C01p., 71 AD3d 874 f2d Dept 2010]). Ho\vever, reargument is not a proper vehicle to present new issues that could have been, but were not raised, on the prior motion or to afford an unsuccessful party successive opportunities to rehash arguments previously raised and considered (see People v D Alessandro. 13 NY3d 216, 219 f2009J; Tounkara v Fernicola, 63 AD3d 648, 649 llst Dept 2009]~ /,ee v Consolidated Edison Co. ofN. Y, 40 AD3d 481, 482 [1st Dept 20071). The Ama(fitano argument was made and discussed at length at oral argument on the prior motions. The decision in that case does not support the claim that Melcher is entitled to recover delay damages against the law finn and Corwin based on the fact that by the time Melcher was able to enforce the judgment, Apollo Management lacked the resources to pay. Assuming that liability is proven, Melcher will be able to collect "excess legal expenses" incurred in the underlying action. Melcher's new argument that all foes incurred after the motion to strike was denied are proximately caused by the deceit because, barring the deceit, the motion would have been granted, is both improperly raised in a motion to reargue and speculative. Accordingly, the request for leave to reargue is GRANTED and upon reargumcnt the motion is DENIED. The request for a stay and adjournment of the trial is GRANTED in the discretion of the court on the condition that the appeal be perfoctcd on or before October 2, 2017. Within 15 days of the date of the decision of the Appellate Division or by October 6, 2017 (if no appeal is perfected by October 2, 2017), defendants shall communicate with the court to request scheduling of a pre-trial conference as appropriate. Regarding defendants' oral request for leave to reargue their request for leave to file a second motion for summary judgment, the requested relief is DENIED without prejudice to renew the request within 30 days after the Appe!late Division decides plaintiffs appeal. This constitutes the decision and order of the court. DATED: August 31, 2017 0. PETER SHERWOOD J.S.C. 5 6 of 6
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