Arango v Atlantic Westerly Co., L.L.C.

[*1] Arango v Atlantic Westerly Co., L.L.C. 2020 NY Slip Op 51449(U) Decided on December 3, 2020 Supreme Court, New York County Reed, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2020
Supreme Court, New York County

Luis Arango, Plaintiff,

against

Atlantic Westerly Company, L.L.C., ATLANTIC WESTERLY COMPANY, HOFFMAN FAMILY ASSOCIATES, LLC, RONALD VILLANO ARCHITECT, P.C., EXPERION LLC, THOMAS MAINTENANCE INC., Defendant.



ATLANTIC WESTERLY COMPANY, L.L.C., HOFFMAN FAMILY ASSOCIATES, LLC Plaintiff,

against

300 PARKING INC. Defendant.



150887/2016



Plaintiff:

Schwartz Goldstone & Campisi, LLP

90 Broad Street, Rm 403, New York, NY 10004

By: Joseph Campisi, Esq. Defendant: Atlantic Westerly Company L.L.C. & Hoffman Family Associates, LLC

Gannon Rosenfarb & Drossman

100 William St. Fl 7, New York, NY 10038

By: Nicholas Gisonda, Esq.

Defendant: Thomas Maintenance Inc.

McGivney & Kluger, P.C.

80 Broad Street, 23rd Floor, New York, NY 10004

By: Lawrence J. McGivney. Esq.

Third-Party Defendant: 300 Parking

Russo & Toner LLP

33 Whitehall Street, 16th Floor, New York, NY 10004

By: Daniel M. Schiavetta, Esq.

Hickey Smith LLP

1040 Avenue of the Americas, Suite 9C, New York, NY 10018

By: Jody Carol Benard, Esq.

Defendant: Atlantic Westerly Company

No Appearance Recorded.

Defendant: Ronald Villano Architect, P.C.

No Appearance Recorded

Defendant: Experion LLC

No Appearance Recorded.
Robert R. Reed, J.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144 were read on this motion to RENEW/REARGUE/RESETTLE/RECONSIDER.

In this personal injury action resulting from a slip and fall, defendants/third-party plaintiffs Atlantic Westerly Company, LLC and Hoffman Family Associates, LLC (collectively, Atlantic) move, pursuant to CPLR 2221, to reargue the court's decision and order dated June 23, [*2]2020 (Doc No. 129)[FN1] respecting its Notice of Cross Motion (Doc No. 90) attendant to Motion Seq. No. 005 (Doc No. 70).

FACTUAL AND PROCEDURAL BACKGROUND

On or about December 9, 2019, defendant Thomas Maintenance Inc. moved (Motion Seq. No. 005) for summary judgment (CPLR 3212) to dismiss the Summons and Complaint (the Complaint) (Doc No. 1). Atlantic cross-moved (Doc No. 90) in Motion Seq. No. 005 for summary judgment (CPLR 3212) to dismiss the Complaint and all cross claims against Atlantic and for judgment on Atlantic's Third-party Summons and Complaint (the Third-party Action) (Doc No. 19) against third-party defendant, 300 Parking Inc.

By decision and order dated June 23, 2020 (Doc No. 129), the court dismissed the Complaint against moving defendant Thomas Maintenance Inc., and denied Atlantic's cross motion, despite its having been submitted without opposition, on the following grounds:

"The cross motion of [Atlantic] is procedurally improper. Pursuant to CPLR 2215, '[a]t least three days prior to the time at which the motion is noticed to be heard a party may serve upon the moving party a notice of cross-motion demanding relief' (emphasis added). The moving party on the within motion (motion sequence 005) is defendant Thomas Maintenance, not plaintiff Luis Arango and not third-party defendant 300 Parking Inc. Thus, [Atlantic] may not on the within motion avail themselves of the cross-motion procedural device to obtain relief against either the non-movant plaintiff or the non-movant third-party defendant 300 Parking Inc. Moreover, to the extent it is being pursued as against third-party defendant 300 Parking Inc. the relief sought on the motion is now unavailable in light of the court's decision on motion sequence 004. On motion sequence 004, the court granted summary judgment in favor of third-party defendant 300 Parking Inc. and against [Atlantic] - without any recorded opposition by Atlantic."

ARGUMENTS

Atlantic contends that the court must now grant its application to reargue, pursuant to CPLR 2221, because: (1) Atlantic erroneously mislabeled its prior application as a "cross motion" due to law office failure, and, in accordance with CPLR 2001, such errors should be disregarded by the court; (2) the pro se plaintiff is not prejudiced by the court's reconsideration of Atlantic's prior application because the plaintiff never submitted any opposition papers therein; (3) the third-party defendant 300 Parking Inc. cannot claim any prejudice from the court's reconsideration of Atlantic's prior application because 300 Parking Inc. had more than ample opportunity to oppose the prior motion and failed to do so; and (4) Atlantic's application is meritorious because, as an "out-of-possession" landlord, Atlantic is not liable for plaintiff Luis Arango's purported injuries and the case must be dismissed against it, and 300 Parking Inc. has a duty to indemnify Atlantic and judgment must be rendered in Atlantic's favor on its Third-party Action against 300 Parking Inc..

Third-party defendant 300 Parking Inc. does not oppose that branch of Atlantic's application seeking to dismiss plaintiff's action against Atlantic. However, 300 Parking Inc. opposes that branch of Atlantic's application seeking judgment on the Third-party Action against 300 Parking Inc. because, by court order dated June 23, 2020 (Doc No. 128) respecting Motion [*3]Seq No. 004 (Doc No. 93), the Third-party Action was dismissed, without opposition. Therefore, Atlantic's instant application against 300 Parking Inc. is moot and must be denied. The third-party defendant argues further that Atlantic never moved to vacate the prior order dismissing the Third-party Action, nor seeks any relief herein to change the court's prior determination.

The pro se plaintiff Luis Arango did not submit any opposition papers to Atlantic's instant application to reargue pursuant to CPLR 2221.

DISCUSSION

Atlantic's application is denied. A motion to reargue, pursuant to CPLR 2221 (d) (2), "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." A motion for "[r]eargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided" (Matter of Setters v AI Props. & Devs. (USA) Corp., 139 AD3d 492, 492 [1st Dept 2016] [internal quotation marks and citation omitted]).

Here, Atlantic fails to set forth the fact(s) or law(s) the court allegedly overlooked or misapprehended in denying its prior cross motion to dismiss the Complaint and for judgment on its Third-party Action against 300 Parking Inc. The court denied Atlantic's prior cross motion application on two grounds: (1) it was improper to cross move against non-moving parties; and (2) the relief sought against third-party defendant 300 Parking Inc. was unavailable due to the fact that the Third-party Action was dismissed. The law is clear that a cross motion is an improper vehicle to use when seeking relief against non-moving parties (see Hennessey-Diaz v City of New York, 146 AD3d 419, 420 [1st Dept 2017], citing Kershaw v Hospital for Special Surgery, 114 AD3d 75, 88 [1st Dept 2013]; Puello v Georges Units, LLC, 146 AD3d 561, 562 [1st Dept 2017]; and Asiedu v Lieberman, 142 AD3d 858 [1st Dept 2016]). Additionally, Atlantic completely ignores the fact that the court dismissed the Third-party Action.

Atlantic's claim that it merely mislabeled its prior motion papers as a "cross motion" does not warrant the grant of re-argument. CPLR 2001 states as follows:

"At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."

Although technical defects may be corrected or disregarded by the court absent prejudice to the substantial rights of a party (7 W. Foods v Forty-Seventh Fifth Co., 109 AD2d 658, 658 [1st Dept 1985), here the prejudice is clear. Plaintiff and the third-party defendant were prejudiced by the "mislabeling" because they were not formally notified that relief was sought against them. Under CPLR 2215, the only affirmative relief that could have been sought by cross motion was against the movant in Motion Seq. 05, defendant Thomas Maintenance Inc. Plaintiff and the third-party defendant were therefore not called upon to file substantive opposition papers, and they did not. Moreover, CPLR 2001 addresses mistakes in the "method" of filing, rather than mistakes in "what" was filed (see Goldenberg v. Westchester County Health Care Corp., 16 NY3d 323, 327 [2011]; and Elkman v Cord 112 AD3d 489 [1st Dept 2013]). Having failed to set forth entitlement to consideration of the instant application to re-argue pursuant to [*4]CPLR 2221, Atlantic's motion must be denied.

CONCLUSION

Accordingly, it is

ORDERED that the application by defendants/third-party plaintiffs Atlantic Westerly Company, LLC and Hoffman Family Associates, LLC (Motion Seq. 007) to reargue the court's decision and order dated June 23, 2020 respecting its Notice of Cross Motion (Doc No. 90) attendant to Motion Seq. No. 005 (Doc No. 70), is denied, in its entirety.

DATE 12/3/2020

ROBERT R. REED, J.S.C. Footnotes

Footnote 1: References to "Doc No." followed by a number are to documents filed in NYSCEF.