Bisnath v Porteus

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Bisnath v Porteus 2018 NY Slip Op 33418(U) November 26, 2018 Supreme Court, Bronx County Docket Number: 310337/2010 Judge: Alison Y. Tuitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] / " / ( \ NEW YORK SUPREME COURT----------C1UNTY OF BRONX v IlDEX NUMBER: 310337/2010 RAJENDRANAUTH BISNATH and TARAMATIE BISNATH, Plaintiffs, JJ•stice: Af"LISON Y. TUITT -againstJOAN CHIAPP A PORTEUS, ALFRED CHIAPPA, JOHN PORTEUS and JASON PORTEUS, Defendants. The following papers numbered 1-5, Read on this Plaintiffs' Motion for Leave to Intervene and Defend ' ts' Cross-Motion to Dismiss On Calendar of 6/26/17 Notices of Motion/Cross-Motion-Exhibits, Affirmations_--4---=1:'-'2= - - - - - - - - - 4 -.i.---'---------Affirmation in Opposition._ _ _ _ _ _ _ _ _ _ _ _- + - - - -3- = Reply Affirmation_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _---'5~--------- Upon the foregoing papers, plaintiffs' motion for leav~ to intervene and to amend the caption and defendants' cross-motion to dismiss the action are consolidated for tfue purposes of this decision. For the reasons set forth herein, plaintiffs' motion is granted and ~efendants'I cross-motion is denied. Plaintiffs reside at 1937 Hunt Avenue Bronx, New Y1rk. The within matter pertains to real property located next door at 1941 Hunt Avenue, Bronx, New York. In their Verified Complaint, plaintiffs allege as follow: Prior to September 10, 2010, defendants Joan Chia~pa Porteus and Alfred Chiappa were seized in fee simple of 1941 Hunt A venue when the Sheriff sold the interest of defendant Joan Chiappa Porteus at a public sale. The sale was pursuant to a Judgment in an action betwefn Rajendranauth Bisnath and Taramatie Bisnath and Joan Chiappa Porteus for the sum of $558,820. On August 11, 2010, plaintiffs purchased Joan Chiappa Porteus' title and interest in the premises under a deed to tht premises issued to plaintiff by Lindsay 1 [* 2] corrected the Deed and listed the transfer as encompassing only 50% 1f the property. 2 [* 3] record of title is clear that the plaintiffs have a purported interest int e premises by virtue of the filed Sheriffs deed. Justice Aarons also ordered that John Porteus and Jason Porte s be substituted as defendants in place of Alfred Chiappa. Plaintiffs now move for leave for Ullin Bisnath to intervene in the within action and directing that Ullin Bisnath be added as a party. Plaintiffs also seek to remove Alfred Chiappa from the caption in this case. Ullin Bisnath is the daughter of plaintiff Taramatie Bisnath. P aintiffs argue that Ullin Bisnath has also been harmed by the actions of defendant Joan Chiappa Porteus but cduld not seek this relief sooner due to infancy. Ullin Bisnath is now 20 years old and seeks to intervene on the grounds that her damages are the same as her mothers. CPLR §1013 Intervention by permission provides Upon timely motion, any person may be permitted to ntervene in any action when a statute of the state confers a right to intervene in the discretion oft e court, or when the person's claim or defense and the main action have a common question of law or fact. In exercising its discretion, the court shall consider whether the intervention will 1·nduly delay the determination of the action : or prejudice the substantial rights of any party. 1 Here, permission to intervene pursuant to CPLR 1013 and to remove Alfred Chiappa from the caption is granted since defendants state in their papers that "Defendants the Porteus fa~ily do not oppose (a) removing Alfred Chiappa, brother of Joan Porteus, from the caption of this case, or (b the adding of the Bisnaths' 20-year-old daughter to this seven year-old case ... ". Defendants' cross-motion to dismiss the action on the grounds that plaintiffs have failed to produce the settled order pursuant to Justice Green's decision is denied. This is the second motion by defendants. Defendants Alfred Chiappa, John Porteus and Jason Po eus moved for partial summary judgment seeking to declare as invalid the sheriffs sale held on August 11, 20 0 and the motion was denied by Justice Aarons by decision and Order dated August 8, 2016. Justice Aarons wrote Defendants-counterclaimants argue that they are entit ,ed to partial summary judgment based upon certain statement of facts from this Court's Dec mber 18, 2013 decision and order. In quoting from this decision and order, they state that" I ]laintiffs have not shown that they validly obtained the .... Sheriffs Deed conveying [Joan] Port us' half of property to them." ... This argument, however, fails ... first, this quoted sent nee is a legal conclusion reached by this Court after evaluating the proof submitted in plaintiff: prior motion for summary judgment. It is not, as defendants ... characterize, an uncontroverted f: ct. Rather, this Court held that plaintiffs' moving papers were deficient... 1 ' Second, Defendants-counterclaimants ... as the movin party here ... do not submit any proof showing the ownership interest in the subject propertx; they do not submit a copy of the 3 [* 4] pleadings. Hence, the burden never shifted to plaintif s as defendants-counterclaimants failed to meet their respective summary judgment burden. In an accompanying decision and Order, plaintiffs we e directed to produce the settled order within 30 days after service of that Order with Notice of Entry. In a event, the cross-motion seeks the same relief as defendants sought in the prior motion. Pursuant to C.P .L.R. Rule 2221, a party may move for reargument where it is shown that the Court overlooked or misappre ended any matters of fact or law in issuing the underlying Order. (Reargument of a motion is not designed to af ord an unsuccessful party successive opportunities to reargue issues previously decided, or to present argutnents different from those originally asserted. Massey v. City of New York, 672 N.Y.S.2d 679 (1st Dept. 1998); Pahl Equipment. v. Kassis, 588 N.Y.S.2d 8 (1st Dept. 1992). Nor is a motion to reargue designed to cure a deficiency in the original application. Defendants here have failed to show that this Court overlooked or misapprehended matters of law or fact in deciding the underlying motion. A motion for leave to ren w " ... shall be based upon new facts not offered on the prior motion that would change the prior determinatio · or shall demonstrate that there has been a change in the law that would change the prior determination ... and. .. . hall contain reasonable justification for the failure to present such facts on the prior motion." C.P .L.R. Rule 221. [Emphasis added]. Renewal should be denied where the motion is based on the same facts asserted in ea lier motion and fails to present new facts. Pahl Equipment. v. Kassis, 588 N.Y.S.2d 8 (1st Dept. 1992). Renew 1 should also be denied where new facts are presented but the party fails to offer a valid excuse for not submi ing the additional facts upon the original application. Foley v. Roche, 418 N.Y.S.2d 588 (1st Dept. 1979). D fendants have failed to make such a showing here. This constitutes the decision and Order of this Court. Dated: / / / J 0(J 8 / on. Alison Y. Tuitt 4

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