AKA Mystique Accessories, LLC v Fragments Holding, LLC
Annotate this CaseDecided on June 8, 2020
Supreme Court, New York County
AKA Mystique Accessories, LLC, Plaintiff,
against
Fragments Holding, LLC, Defendant.
651133/2019
Eugene B. Nathanson, Esq., New York, NY, for plaintiff.
Lazarus & Lazarus, P.C., New York, NY (Harlan M. Lazarus and Jared H. Louzon of counsel), for defendant.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 006), 34, 35, 36, 37, 38, 39, 40 were read on this motion for LEAVE TO REARGUE
The present motion is defendant's second attempt to persuade this court to vacate its order granting as unopposed plaintiff's summary-judgment motion because defendant failed to submit timely opposition papers. (See NYSCEF No. 26.) This request, like the prior one, is denied.
Plaintiff's motion for summary judgment (motion sequence 002) originally was returnable on October 23, 2019. (See NYSCEF No. 14.) Defendant requested that the return date be adjourned for 30 days, until November 23, 2019. (See NYSCEF No. 22.) This court granted defendant's request. (See id.) As it happened, November 23, 2019, was a Saturday. Thus, defendant's opposition papers were required to be filed no later than Monday November 25 at the outside.
Defendant did not submit opposition papers to the Motion Submission Part on November 25, or ask this court or the Submission Part for an adjournment. Instead, defendant merely e-filed opposition papers at 6:08 P.M. that night. (See NYSCEF No. 24.) Even then, defendant neither acknowledged that its opposition papers were untimely nor sought an extension of time or other relief from this court. Further, those (tardy) opposition papers relied throughout on the "Haber Affidavit" (see generally id.); that affidavit, however, although filed on NYSCEF, was sealed from view by all parties—including this court. (See NYSCEF Dkt. Entry No. 23.)
In January 2020, this court granted plaintiff's motion as unopposed, noting the multiple overlapping deficiencies in the papers filed by defendant. (See NYSCEF No. 26.)
Defendant then e-filed a letter with this court, suggesting that the court's order granting summary judgment was "falsely premised," and respectfully requesting that the court therefore withdraw the order, consider defendant's opposition papers, and decide the motion on the merits "without necessity of a Motion to Reargue." (NYSCEF No. 27 at 1.) On February 3, 2020, this court denied defendant's request by memorandum endorsement, essentially for the reasons given above. (See NYSCEF No. 29 at 2-3.)
Defendant did not seek leave to vacate its default in opposing summary judgment; nor does it now seek leave to vacate its default or request a nunc pro tunc extension of time to file its opposition papers. Instead, defendant moves only for leave to reargue the order granting summary judgment on the ground that it was never in default. (See NYSCEF Nos. 34-38.) But defendant fails to show that this court overlooked or misconstrued facts that might show that defendant's opposition papers were timely. The motion is denied.
In moving for reargument, defendant asserts for the second time that its opposition papers—though not provided to the Submission Part—were timely because they were filed on NYSCEF after 6:00 P.M. on the return date. (See NYSCEF No. 35 at 3.) That assertion is groundless.
Defendant also does not dispute that even its belatedly filed opposition papers did not include a version of the Haber Affidavit that this court could access. Instead, defendant asserts that this court should have considered the Haber Affidavit anyway because a hardcopy of that affidavit was (assertedly) delivered to this court on Wednesday November 27, 2019. (See id. at 3-4; see also NYSCEF No. 37.) This court is unpersuaded.
This court has no indication in its records that it ever received the Haber Affidavit.
Although defendant submits a delivery confirmation from its filing service, that [*2]confirmation refers merely to a "courtesy copy" of unspecified papers in the case—without specifying whether those papers included the Haber Affidavit in addition to defendant's memorandum of law. (See NYSCEF No. 37.) And even if defendant did drop off a copy of the affidavit on November 27, that would still not make defendant's opposition timely. If defendant wished this court to consider the Haber Affidavit in opposition to summary judgment, then defendant needed to have provided a copy of the affidavit to the Motion Submission Part in a timely fashion on the return date—not merely have had a messenger service hand-deliver a "courtesy copy" of the affidavit directly to this court two days after the return date.
Moreover, this court remains unable to assess the strength of defendant's opposition to summary judgment at all. That opposition is based upon the Haber Affidavit; but as already discussed, this court does not have a hardcopy version of the affidavit and also cannot view the affidavit as e-filed on NYSCEF. Nor has defendant sought leave to submit a copy to this court for its in camera review.
In short, defendant still has not identified any issue this court overlooked that might affect this court's conclusion that defendant's opposition papers were untimely. And even if this court were minded to overlook the papers' untimeliness—which it is not—defendant has not in any event shown that those papers were potentially meritorious.
Accordingly, it is hereby
ORDERED that defendant's motion for leave to reargue is denied.
DATE 06/08/20
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