Shanklin v Wilhelmina Models, Inc.

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Shanklin v Wilhelmina Models, Inc. 2018 NY Slip Op 33850(U) January 16, 2018 Supreme Court, New York County Docket Number: 653702/2013 Judge: O. Peter Sherwood 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. [*FILED: 1] NEW YORK COUNTY CLERK 01/18/2018 02:17 PM INDEX NO. 653702/2013 NYSCEF DOC. NO. 699 RECEIVED NYSCEF: 01/18/2018 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: 0. PETER SHERWOOD New York COUNTY PART 49 Justice ALEX SHANKLIN, et al., INDEX NO. 653702/2013 MOTION DATE Nov. 6, 2017 Plaintiffs, -againstMOTION SEQ. NO. 025 WILHELMINA MODELS, INC., et al., MOTION CAL. NO. --ezn 0 Defendants. The following papers, numbered 1 to_ were read on this motion for reargument/reconsideration. en w ct (.) w i= et:: en C> ..,0 -;::z ::> 0 c..J w..J o:::O I- et:: LL wW LL :C w l- et:: et:: >- 0 ...J LL ...J PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - - - Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - Cross-Motion: D Yes D No Under motion sequence 025, defendant Major Model Management Inc. ("Major") moves for leave to reargue this court's Decision and Order dated May 25, 2017 and dismiss the final remaining cause of action against it - a claim for breach of contract. In the alternative, Major moves to sever the claims brought against it and to transfer them to Civil Court . LL ::> 1(.) w Cl. en w et:: en w en c:i: (.) z 0 i= 0 ::!: The standards for reargument are well settled. "A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound 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 [1st 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 Supply, Inc., 39 AD3d 260 [1st Dept 2007]; Carillo v PM Realty Group, 16 AD3d 611 [2d Dept 2005]). The determination to grant leave to reargue lies within the sound discretion of the court (see Veeraswamy Realty v Yenom Corp., 71AD3d874 [2d Dept 2010]). However, 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 [2009]; Tounkara v Fernicola, 63 AD3d 648, 649 [1st Dept 2009]; Lee v Consolidated Edison Co. ofNY., 40 AD3d 481, 482 [1st Dept 2007]). Major requests leave to reargue on the basis that plaintiff Louisa Raske's ("Raske") claim for breach of contract failed to meet the particularity requirements of CPLR 3013 and that the affidavit of Katia M. Sherman conclusively refuted Raske's claims of breach. As neither of these arguments were advanced during the prior motion (see NYSCEF Doc. No. 459 at 6-8) they "could not have been 'overlooked or misapprehended' ... in the first instance" and thus fail under CPLR 2221 (d) (People v D'Alessandro, 13 NY3d at 219). Major contends that both 1 of 2 [*FILED: 2] NEW YORK COUNTY CLERK 01/18/2018 02:17 PM NYSCEF DOC. NO. 699 INDEX NO. 653702/2013 RECEIVED NYSCEF: 01/18/2018 Shanklin v Wilhelmina Index No.: 653702/2013 Page2 Mot. Seq. No. 025 arguments were previously advanced since its notice of motion stated that Major was requesting dismissal of "plaintiffs' Second Amended Class Action Complaint in its entirety, with prejudice" and since Sherman's affidavit was offered as part of Major's moving papers. However, neither of these documents can be read as raising either of the two arguments Major now advances. Although Sherman's affidavit contends broadly that "plaintiffs' Second Amended Class Action Complaint lacks any basis in fact as to Major" and posits that Major made all necessary payments to Raske (NYSCEF Doc. No. 593), it does not argue, as Major does now, that plaintiffs' claims fail under the standards of a motion to dismiss due to the statements made in that affidavit and the exhibits offered with it. Severance is governed by CPLR 603 which provides, in relevant part, that "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue." Determination to grant or deny a request for severance is within the sound discretion of the trial court (see Herskovitz v Klein, 91 AD3d 598, 599 [2d Dept 2012]), which discretion should be exercised sparingly (see Curreri v Heritage Property Inv. Trust, Inc., 48 AD3d 505 [2d Dept 2008]). In determining whether to exercise their discretion, courts focus on whether there are common legal and factual issues, with the granting of severance generally depending on the absence of such commonality (see Herskovitz, 91 AD3d at 599). Severance may be inappropriate where there are common legal and factual issues involved in two or more causes of action unless the party seeking such severance demonstrates that severance is necessary to prevent prejudice to a substantial right or significant delay in the absence of severance (see Vecciarelli v King Pharms., Inc., 71AD3d595, 596 [1st Dept 2010]; Williams v Property Servs., LLC, 6 AD3d 255 [1st Dept 2004]; Sichel v Community Synagogue, 256 AD2d 276 [1st Dept 1998]). There are few, if any, remaining legal and factual issues involved in the claim against Major that are shared by the rest of this action. Moreover, as argued in its papers, if Major's motion to sever is denied, Major will be drawn into the remaining defendants' discovery, which will likely be far more extensive than the discovery needed to address the claim against Major. Thus, Major will be prejudiced by increased litigation costs and delay in the resolution of the claim against it. Accordingly, Major's motion to sever will be granted. However, before ruling on class certification, Major's argument regarding the amount in controversy on the claim against it is premature. Accordingly, Major's request to have this case transferred to Civil Court is denied without prejudice to its later renewal following a ruling on class certification. Accordingly, for the forgoing reasons, it is hereby ORDERED that the motion for leave to reargue is DENIED and the motion to sever is GRANTED in p. ";t~~ ez2._. ?-+-.,...dL£-!i""""/I_~______ Dated: January 16, 2018 ->+-_ 0. PFfER SHERWOOD, J. .C. Check one: 0 FINAL DISPOSITION Check if appropriate: D DO NOT POST 0 SUBMIT ORDER/ JUDG. 2 of 2 ~-FINAL DISPOSITION DREFERENCE 0 SETTLE ORDER/ JUDG.

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