Simry Realty Corp. v Bishop

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Simry Realty Corp. v Bishop 2021 NY Slip Op 32226(U) November 10, 2021 Supreme Court, New York County Docket Number: Index No. 100871/2016 Judge: Erika M. Edwards 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] INDEX NO. 100871/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 11/10/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ERIKA EDWARDS 11 Justice -------------------X INDEX NO. SIMRY REALTY CORP. MOTION DATE Plaintiff, 100871/2016 06/18/2018, 07/09/2018 MOTION SEQ. NO. _ __,;:,_oo-"-4---'---"-0-"-05;;.___ -vDOROTHY BISHOP, DECISION + ORDER ON MOTION Defendant. -------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004} 15, 16, 17, 18, 19, 20,21,22,27,28,29,30,64,66 were read on this motion to/for REARGUMENT/RECONSIDERATION The following e-filed documents, listed by NYSCEF document number (Motion 005} 31, 32, 33, 34, 36, 37,65,67 were read on this motion to/for RENEWAL Upon the foregoing documents, under Motion Sequence No. 004, the court grants Defendant Dorothy Bishop's ("Defendant") motion to reargue Defendant's prior motion for partial summary judgment (Motion Sequence No. 002) and Plaintiff Sirnry Realty Corp.' s ("Plaintiff') motion directing Defendant to deposit a sum of money for use and occupancy (Motion Sequence No. 003), and upon reargument, the court grants Defendant's motion and denies this portion of Plaintiff's motion. The court denies Plaintiff's cross-motion for an order assessing punitive and compensatory sanctions against Defendant and Stuart Lawrence, Esq. for unlawfully filing a motion to reargue without leave of court. The court also denies Plaintiffs motion by order to show cause filed under Motion Sequence No. 005 to renew and reargue the court's decision and order, dated May 7, 2018, and to reinstate Plaintiffs cause of action for ej ectment and grant Plaintiff leave to amend Plaintiffs complaint. 100871/2016 SIMRY REALTY CORP. vs. BISHOP, DOROTHY Motion No. 004, 005 1 of 5 Page 1 of 5 [* 2] INDEX NO. 100871/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 11/10/2021 The court scheduled oral argument on these motions on May 13, 2021, June 29, 2021 and September 9, 2021, but neither Plaintiffs counsel, nor its principal, appeared. The court was advised that Plaintiff's counsel of record, Michael Stepper, no longer represented Plaintiff and no other attorney has appeared in the action on Plaintiffs behalf. The court's order, dated May 13, 2021, directed Mr. Stepper to move to withdraw as counsel if he no longer represented Plaintiff and for new counsel to appear in this action and update the attorney's contact information on NYCEF and with the part clerk as soon as possible. Via written correspondence, dated May 19, 2021, Mr. Stepper advised the court in substance that a temporary restraining order (which was converted into a preliminary injunction) on another matter involving Plaintiff required him to cease representing Plaintiff on all matters. He stated that he forwarded the file to another attorney whom he believed was representing Plaintiff. The court was subsequently advised that the attorney who purportedly had the file did not represent Plaintiff in this action. Additionally, the court was advised that the information regarding the conference had been provided to Plaintiff's principal. After no one appeared on Plaintiffs behalf at the oral argument on June 29, 2021, the court issued an order on that same date directing Plaintiff to appoint a substitute attorney within twenty (20) days of the date of the decision and order, directing the new attorney to file a notice of appearance within thirty (30) days of the decision and order, or the court required Plaintiffs principal to provide his or her contact information to the part clerk and appear at the next conference for oral argument on September 9, 2021. On September 9, 2021, Plaintiff failed to comply with the court's order and no one appeared for Plaintiff at the oral argument for the third consecutive time. No attorney filed a 100871/2016 SIMRY REALTY CORP. vs. BISHOP, DOROTHY Motion No. 004, 005 2 of 5 Page 2of 5 [* 3] INDEX NO. 100871/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 11/10/2021 notice of appearance or provided contact information to the court and the principal of Plaintiff failed to contact the court. To date, no new attorney has filed a notice of appearance on Plaintiff's behalf. As such, the court denies Plaintiff's cross-motion and motion by order to show cause under motion sequence 005 on default for its failure to appear for three consecutive oral arguments, its failure to retain an attorney to represent it in this action and its apparent abandonment of these issues. Additionally, the court denies Plaintiff's cross-motion and motion on their merits as Plaintiff failed to demonstrate its entitlement to the relief requested and as moot in light of the court's decision to grant Defendant's motion to reargue and the court's dismissal of the remaining causes of action in Plaintiffs complaint. Pursuant to CPLR 2221 (d)(2), a motion for leave to reargue is left to the sound discretion of the court and may be granted only where the moving party contends that an issue of law or fact had been overlooked or misapprehended by the court when deciding the original motion (CPLR 2221[d][2]). It is not designed to provide the unsuccessful party successive opportunities to reargue issues previously decided by the court or to present new evidence or different arguments than previously raised (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1 st Dept 1992] [internal citations and quotation marks omitted]). The court grants Defendant's motion to reargue filed under motion sequence number 004 and finds that Defendant established that the court misapprehended or overlooked Defendant's argument regarding the significance of and nature of the building's certificate of occupancy and the entire apartment's lack of a residential certificate of occupancy. Upon reargument, the court reverses its previous decision and order denying dismissal of Plaintiffs use and occupancy claim under its second cause of action and the court dismisses it. 100871/2016 SIMRY REALTY CORP. Motion No. 004, 005 vs. BISHOP, DOROTHY 3 of 5 Page 3 of 5 [* 4] INDEX NO. 100871/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 11/10/2021 Additionally, the court agrees with Defendant that based upon the court's language in its decision and order, the court intended to grant Defendant's motion to dismiss Plaintiff's third cause of action for damages for wrongful withholding of possession since it dismissed Plaintiff's first cause of action for ejectment, and its failure to do so was clearly in error. Thus, it appears that Plaintiff's entire complaint is now dismissed as against Defendant and the only remaining claim is Defendant's counterclaim for attorney's fees. Finally, the court reverses the portion of its decision on motion sequence 003, which directs Defendant to provide Plaintiff with a sum of money for use and occupancy since the court now dismisses Plaintiff's use and occupancy claim. The court considered all additional arguments raised by the parties and denies all additional requests for relief not specifically granted herein. As such, it is hereby ORDERED that, under Motion Sequence No. 004, the court grants in part Defendant Dorothy Bishop's motion to reargue Defendant's prior motion for partial summary judgment (Motion Sequence No. 002) and Plaintiff Simry Realty Corp.'s motion directing Defendant to deposit a sum of money for use and occupancy (Motion Sequence No. 003), and upon reargument, the court grants Defendant's motion and denies the portion of Plaintiff's motion directing Defendant to pay use and occupancy; and it is further ORDERED that the court dismisses Plaintiff's second cause of action for use and occupancy and Plaintiff's third cause of action for damages for wrongful withholding of possession and directs the Clerk of the Court to enter judgment in favor of Defendant as against Plaintiff as to these claims, which dismisses Plaintiff's entire complaint as against Defendant; and it is further 100871/2016 SIMRY REALTY CORP. vs. BISHOP, DOROTHY Motion No. 004, 005 4 of 5 Page4of 5 [* 5] INDEX NO. 100871/2016 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 11/10/2021 ORDERED that the court denies Plaintiffs cross-motion for an order assessing punitive and compensatory sanctions against Defendant and Stuart Lawrence, Esq. for unlawfully filing a motion to reargue without leave of court; and it is further ORDERED that the court denies Plaintiffs motion by order to show cause filed under Motion Sequence No. 005 to renew and reargue the court's decision and order, dated May 7, 2018; and it is further ORDERED that the court directs the parties to appear for a status conference on Defendant's counterclaim on December 7, 2021, at 10:30 a.m., via Microsoft Teams, and Plaintiff is directed to retain counsel immediately or its principal must provide the clerk of Part 11, Ms. Bing Zhao, with his or her contact information and email by emailing her at SFC-Partl 1Clerk@nycourts.gov by November 22, 202 l. This constitutes the decision and order of the court. W~;tJo ~£:}i[~ 11/10/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ERIKA EDWARDS, J.S.C. ~ CASE DISPOSED GRANTED • NON,FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 100871/2016 SIMRY REALTY CORP. vs. BISHOP, DOROTHY Motion No. 004, 005 5 of 5 • • OTHER REFERENCE Page 5 of 5

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