Motta v Ventura
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Motta v Ventura 2019 NY Slip Op 34395(U) December 31, 2019 Supreme Court, Westchester County Docket Number: Index No. 60251/2016 Judge: Sam D. Walker 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] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 INDEX NO. 60251/2016 RECEIVED NYSCEF: 01/07/2020 To commence commence the statutory statutory time time for appeals appeals as of of right right (CPLR (CPLR 5513[a]) 5513[a]), , you are are advised to serve serve a copy copy advised of this order, order, with with notice notice of of entry, entry, upon all parties. parties. SUPREME STATE OF NEW SUPREME COUR.T COURT OF THE THE STATE NEW YORK YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: PRESENT: HON HON.. SAM D. WALKER, WALKER, J.S.C. J.S.C. --------------------------------------------------------------------------x - - -------------------------------------------------------------x ANTONINO MOTTA, ANTONINO MOTTA, DECISION AND AND ORDER ORDER DECISION Plaintiff Index No. No. 60251/2016 60251/2016 Index Plaintiff Motion Sequence Sequence 6 Motion -against-againstSALVATORE VENTURA, VENTURA, SALVATORE Defendant. ·. Defendant. --------------------------------------------------------------------------x ---------------------------------------------------------------------------x The following papers were were considered considered on the the defendant's motion motion to reargue: reargue: The following papers the defendant's Order to Show Show Cause/Affidavit/Affirmation/Exhibits Cause/Affidavit/Affirmation/Exhibits a-h Order & Affirmation Affirmation in ·o Opposition/Exhibits Affidavit Affidavit & pposition/Exhibits 1-9 Memorandum of Law in Opposition Opposition Memorandum Reply Affidavit/Exhibits Affidavit/Exhibits A-C Reply Reply Memorandum Memorandum of Law Reply 1-11 12-22 12-22 23 24-27 24-27 28 papers, it is ordered ordered that motion is denied denied. . that the motion Upon the foregoing foregoing papers, The plaintiff, plaintiff, Antonino Motta ("Motta"), ("Motta"), commenced commenced this this action action against against the The Antonino Motta defendant, Salvatore Salvatore Ventura Ventura ("Ventura"), ("Ventura"), the co-owner co-owner of a residential residential property property located located defendant, York, New itiri~ :as at 426 Street, New New New York, York, alleging alleging ongoing ongoing abuse abuse of his ·pos; posHidri 'as 426 East East 73rdrd Street, . York, - _.· ·. ' .. _ inter alia alia,, that that Ventura Ventura failed failed and ·refused refused to manager of property and alleging alleging, , inter manager of the property provide Motta Motta with financial information information to account for monies monies received received, , or to remit remit 50% provide with financial account for monthly balances balances to Motta, Motta, as required required and seeking seeking monetary monetary damages, damages, an of the monthly accounting, , an injunction, injunction, attorney's attorney's fees fees,, costs expenses. costs and expenses. accounting Ventura failed failed to respond respond to the complaint complaint and the plaintiff plaintiff moved moved for default Ventura for a default judgment. By Decision Decision and Order Order dated dated February February 16, 2017, 2017, the Court (Lubell, the Court (Lubell, J.) denied denied judgment. .. , ':' that motion, then then granted granted the the plaintiff's plaintiff's unopposed unopposed re-application re-application by by D. Decision and Order, that motion, ecision and 9rder, inter alia, that Ventura provide provide Motta· Motta with dated April April 26, 2017, ordering, inter that Ventura with a full and dated 2017 , ordering, ... 1 of 6 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 INDEX NO. 60251/2016 RECEIVED NYSCEF: 01/07/2020 proper accounting financial condition proper accounting as to the financial condition of of the the property property and all moneys moneys due due and owing to the plaintiff, pursuant underlying Management owing the plaintiff, pursuant to the the underlying Management Agreement. Agreement. Motta subsequently for allegedly allegedly deliberately deliberately Motta subsequently moved moved to hold Ventura Ventura in contempt contempt for flouting the Court's Court's Order. Order. The (Lubell, J.) set set the the matter matter down down for for a hearing hearing to flouting The Court Court (Lubell, determine the issue, which which hearing assigned to this parties began began determine the issue, hearing was was assigned this Court. Court. The The parties negotiations with agreed that negotiations with the the assistance assistance of of the Court Court (Lubell, (Lubell, J.) and and agreed that the the firm firm of of & Co., LLP ("lmowitz") conduct the accounting that Imowitz Koenig Koenig & lmowitz ("lmowitz") would would conduct the accounting that the the Court Court ordered. ordered. Prior to commencing commencing the hearing, the that they Prior the hearing, the parties parties advised advised this this Court Court that they had settled the case and on April 2018, placed placed such settlement on the the record. record. As part part of of settled the case April 16, 2018, such settlement settlement, Ventura Ventura agreed pay Motta the settlement, agreed to pay Motta $100,000.00 $100,000.00 within within 60 days days and and an additional $30,000.00 $30,000.00 for for attorney's attorney's fees; agreed that that the additional fees; the parties parties agreed the management management agreement would Maria Ventura agreement would be assigned assigned to Rosa Maria Ventura a/k//a a/kl/a Rosa Rosa Maria Maria Mangiafridda Mangiafridda ("Mangiafridda"); the agreement amended to reflect reflect that that a third-party third-party ("Mangiafridda"); agreement would would be amended management company company would continue to manage management would continue manage the property property through through 2019; 2019; all tenant tenant checks would payable to the management agent; the bank bank account account would would be checks would be made made payable the management agent; the changed to to reflect reflect the signatory; the the parties changed the managing managing agent agent as as the the signatory; parties would would work work together together on a a schedule schedule E; E; Motta Motta would his request contempt and would withdraw withdraw his request for for contempt and the the settlement settlement on would not have have any any effect effect on the accounting accounting that process of being performed. performed. would not on the that was was in in the the process of being Imowitz continued continued with accounting and and completed completed such in September September 2018, 2018, lmowitz with the the accounting such in determining that $146,747.57 is due and to Motta Motta for the period is due and owing owing to for the period 2011 2011 through through determining that $146,747.57 2017. 2017. Motta filed a motion motion seeking to confirm the accounting judgment Motta filed a seeking to confirm the accounting and and direct direct that that judgment be entered on itit and seeking an order pursuant be entered on and Ventura Ventura filed filed a a cross-motion cross-motion seeking an order pursuant to to CPLR CPLR 2221 to renew renew the the April 26, 2017 2017 Order the Court Court or alternatively, modify 2221 to April 26, Order of of the or alternatively, modify such suet, Order Order to the the extent extent of of the the stay stay imposed imposed as as to to management responsibilities and and declaring declaring that management responsibilities that to the stay stay does does not not apply to the the management agreement as assigned to the apply to management agreement as assigned to Mangiafridda, Mangiafridda, based upon the terms terms of of settlement reached in in April and also also seeking settlement reached April 2018; 2018; and seeking an an order order based upon the pursuant to to CPLR CPLR 3217, 3217, directing directing the the discontinuance discontinuance of in light of the the action action in light of of the the April April pursuant 22 2 of 6 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 INDEX NO. 60251/2016 RECEIVED NYSCEF: 01/07/2020 2018 Ventura subsequently that portion the cross-motion 2018 settlement. settlement. Ventura subsequently withdrew withdrew that portion of of the cross-motion referring to CPLR CPLR 2221. 2221. referring This Court determined that the April 2017 Decision Decision and Order Order (Lubell, This Court determined that April 26, 2017 (Lubell, J), entered judgment Motta as to liability liability and ordered ordered Ventura provide Motta Motta a favor of of Motta Ventura to provide entered judgment in favor proper accounting of the the property property and and all monies monies full and proper accounting as to the the financial financial condition condition of due owing to Motta underlying management That order order due and owing Motta pursuant pursuant to the underlying management agreement. agreement. That was not superceded assistance of was superceded or replaced, replaced, the parties parties agreed agreed with with the the assistance of the the Court Court (Lubell, settlement placed (Lubell, J) to the accounting accounting firm, and in fact, in the the settlement placed on the the record record before this parties agreed that the the accounting accounting would before this Court, Court, both both parties agreed that would continue. continue. The The Court Court found no merit Ventura's contention found merit in Ventura's contention that that he consented but not to its consented to the the accounting, accounting, but effect accounting was was simply benefit, since since such such would would place effect and that that the accounting simply for for Motta's Motta's benefit, place no liability on Ventura Ventura after after the judgment liability was entered and the liability judgment on liability was entered the accounting accounting ordered by Justice Lubell. ordered Justice Lubell. The was for payment of of The settlement settlement placed placed on the record record was for a contractual contractual payment $100,000.00 and $30,000.00 $100,000.00 $30,000.00 in attorneys' attorneys' fees. fees. Those Those amounts amounts were were not not in leu of of the accounting and settlement placed placed on the record specifically stated stated that accounting and the the settlement record specifically that tne ttie accounting would continue. Further, Further, pursuant Justice Lubell's Lubell's Decision accounting would continue. pursuant to Justice Decision and Order Order Ventura to pay pay Motta all monies monies due owing pursuant Ventura was was to Motta all due and and owing pursuant to to the the underlying underlying management agreement. this Court that Ventura raised substantive management agreement. Nevertheless, Nevertheless, this Court found found that Ventura raised substantive issues with findings of accounting firm scheduled the of t~e t~e accounting firm and and scheduled the matter matter for for a a framed framed issues with the the findings issue hearing hearing on of the performed by and to issue on the the accuracy accuracy of the accounting accounting performed by Imowitz lmowitz and to determine deter.mine an equitable equitable result. Decision and and The Court Court also motion to modify the the April The also denied denied Ventura's Ventura's motion to modify April 26 26thth Decision Order, finding placed his settlement Order, finding that that at the time time Ventura Ventura placed settlement on the the record, record, he was was move at that aware of of the April aware April 26thth Order Order and did not move that time time to modify modify it in anyway anyway and was well the rights and obligations was well aware aware of of the rights and obligations he he would would be be transferring. transferring . The The parties parties specifically noted that Mangiafridda Mangiafridda would take on the of the specifically noted that would not take the responsibility responsibility of management. management. 3 3 3 of 6 INDEX NO. 60251/2016 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 01/07/2020 Mangiafridda now now files files a motion renew and upon Mangiafridda motion seeking seeking leave leave to renew and reargue reargue and upon the granting of of such such leave, directing that the granting leave, an order order directing that effective effective January January 1, 2020, 2020, Mangiafridda assume duties for Mangiafridda assume management management duties for the year. Mangiafridda seeks of the Decision and Order, Mangiafridda seeks to reargue reargue that that portion portion of the Court's Court's Decision Order, which misstated misstated the representations which representations made made on the record record at the the April April 16, 2018 2018 settlement of the action regarding settlement the action regarding the the responsibility responsibility Mangiafridda Mangiafridda would would take take for for the the Street, New New York, management of subject real property located at 426 of the the subject property. located 426 Each Each 73rdrd Street, York, management New York. York. Alternatively, renew that that portion the Decision Decision of the New Alternatively, Mangiafridda Mangiafridda seeks seeks leave leave to renew portion of for the purpose purpose of determining that Mangiafridda shall for the of determining that Mangiafridda shall assume assume responsibility responsibility for for management of the place of Eric Goodman management the property, property, in place Goodman Realty, Realty, which which management management ends on December December 31, 2019, 2019, as per ends per the the terms terms of the the settlement. settlement. Discussion Discussion A motion motion for for reargument reargument must must be "based "based upon matters matters of fact or law law allegedly allegedly of fact overlooked or misapprehended misapprehended by the court court in determining determining the prior motion, shall overlooked the prior motion, but shall include any matters of fact motion," (CPLR [d][2]). Such not include any matters fact not offered offered on the the prior prior motion," (CPLR 2221 [d][2]). Such motions are addressed discretion of Court, (see (see Deutsche Deutsche motions addressed to the the sound sound discretion of the Supreme Supreme Court, Bank Nat. Trust Trust Co. v Ramirez, Ramirez, 117 AD 3d 674 Dept 2014]). Therefore, the Bank AD3d 674 [2d Dept 2014]). Therefore, the Court Court reconsider the prior prior order limits of statutory statutory time time limits has jurisdiction jurisdiction to reconsider order "[r]egardless "[r]egardless of concerning motions to reargue" reargue" (see Itzkowitz Itzkowitz v King Kullen Grocery Grocery co., Inc., 22 AD3d King Kullen AD3d concerning motions 636 [2d Dept Dept 2005]) 2005]) and the have to deny motion to reargue merely 636 the Court Court does does not have deny a motion reargue merely (Id.). . . because it was made beyond beyond the defined in CPLR CPLR 2221 [d][3] (Id.) because was made the 30-day 30-day limit limit defined 2221[d][3] motion for based upon upon new new or which, "A motion for leave leave to renew renew must must be based or additional additional facts facts-which, although in existence existence at the time time of motion, were not made made known of the original original motion, were not known to the although party seeking seeking renewal, therefore, were were not known to.. the court" Morrison party renewal, and, therefore, known to the court" Morrison v. v. Rosenberg, 278 N.Y.S.2d 354 (2d Dept. 2000). motion "must "must set Rosenberg, 278 AD.2d A.D.2d 392, 717 N.Y.S.2d 2000). The The motion set forth a reasonable reasonable justification for the failure prior motion' motion'!.' forth justification for failure to present present such such facts facts on the the prior Sobin v. v. Tylutki, 59 AD.3d N.Y.S.2d 743 leave Sobin A.D.3d 701, 873 N.Y.S.2d 743 (2d Dept. 2009). 2009). '[A] motion motion for for leave to renew renew "is "is not not a freely given not exercised exercised due due to parties parties who who have have not to a second second chance chance freely given to • diligence in making making their first factual diligence their first factual presentation'" presentation'" Renna Renna v. v. Gullo, 19 AD.3d A. -.3d 472,797 472, 797 N.Y.S.2d 115 (2d Dept. 2005). However, "[t]he "[t]he requirement a motion be N.Y.S .2d 115 (2d Dept. 2005). However, requirement that that a motion for for renewal renewal be 44 4 of 6 [*FILED: 5] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 INDEX NO. 60251/2016 RECEIVED NYSCEF: 01/07/2020 based on new new facts facts is a flexible flexible one, and it is within court's discretion discretion ·to to grant grant based within the court's renewal upon upon facts facts known known to the moving moving party party at the time of of the the original original motion motion if the renewal the time movant offers offers a reasonable reasonable excuse excuse for for the failure failure to present present those those facts facts on the prior prior movant motion" (see Gonzalez Gonzalez v Vigo Const. Const. Corp., 69 AD3d citing Matter Matter of of Surdo Sur-do v motion" AD3d 565, 565 , citing Levittown Pub. School School Dist., 41 AD3d 486 [2007]; [2007]; see see also also Heaven Heaven v McGowan, McGowan, 40 Levittown AD3d 486 AD3d 583, 583, 586 (2007]) [2007]). . AD3d review of arguments made made and the evidence evidence submitted submitted on the order order of the the arguments Upon a review show cause, cause, the Court Court now now denies denies the application application. . The The attorney attorney asserts asserts that that the to show Court did not fully fully address address the injunction injunction in the April 2017 Order Order and inaccurately inaccurately stated Court April 2017 stated that "[a]t "[a]t the time time Ventura Ventura placed placed his settlement settlement on the record,, he was aware of of the the that the record was aware obligations he would transferring. The The parties parties specifically noted that that rights and obligations would be transferring. specifically noted Mangiafridda would take on the responsibility of management" management" (See (See Decision Decision and Mangiafridda would not take the responsibility Order dated June Order dated June 28, 2019). 2019). The Court Court has reviewed reviewed the record record and has determined determined that inaccurate The that it was was not inaccurate statement. The The parties parties replied replied "no" when specifically asked asked by the Court if in its statement. when specifically the Court Mangiafridda Mangiafridda would would take take on the responsibility responsibility of the management. management. Further, Further, even even if the Court was was mistaken mistaken in its statement, statement, this this does does not change change the analysis analysis and the Court determination of the Court Court that that as Ventura's Ventura's assignee, assignee, Mangiafridda Mangiafridda is barred barred from determination exercising any management management rights rights that that Ventura could not exercise exercise .... exercising Ventura could With regard regard to the the motion motion to renew, the Court Court also also denies denies such motion. This This With such motion. matter was already settled settled and a settlement settlement placed placed on the record before before this Court. Court. The matter was already the record The motion that that was was decided decided by this Court was regard to the the accounting accounting and a crossmotion this Court was with with regard crossmotion to modify modify the prior prior order order with regard to have have Mangiafridda Mangiafridda manage manage the property motion with regard the property at the end of 2019. 2019. Mangiafridda, Mangiafridda, who even a party party to the action action and technically who is not even technically cannot reargue reargue or renew renew a motion motion that that was not brought brought by her her in the place, cannot cannot cannot was not the first first place, now make make a motion motion contesting contesting testimony testimony and documentation documentation submitted submitted during during the now pendency of the the matter. matter. Further, Further, any disputes disputes with regard to the accounting accounting and with regard pendency documentation provided provided was addressed at a hearing hearing scheduled scheduled by this Court. documentation was to be addressed this Court. Accordingly, based on the foregoing, foregoing, it is Accordingly, based and/.or reargue reargue is is denied denied. . ORDERED that that the order to to show show cause cause to to renew renew and/.or ORDERED the order 55 5 of 6 [*FILED: 6] WESTCHESTER COUNTY CLERK 01/07/2020 04:48 PM NYSCEF DOC. NO. 311 INDEX NO. 60251/2016 RECEIVED NYSCEF: 01/07/2020 The foregoing constitutes the Opinion Opinion, , Decision Decision and Order Order of of the The foregoing constitutes the Court. Court. White Plains, Plains, New New York York Dated: White December 31, 31,2019 2019 December Cu«__i!_ . ~ CuA.- 12.~ WALKER, J.S.C. J.S.C. HON. SAM D. WALKER, 6 6 6 of 6 ·;·
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