Opinion
21995-2005.
Decided April 19, 2011.
Pursuant to CPLR Rule 2221(d), Movants Jerome Ackerman, Barbara Ackerman, Gary Ackerman and Irwin Ackerman (d/b/a Ramp Property Co.) (hereinafter collectively, "RAMP"), move for leave to reargue the underlying motions decided in the Court's June 14, 2010, orders insofar as they dismissed cross claims against Defendant D'Agostino Supermarkets, Inc. (hereinafter, "D'Agostino") and Metropolitan Security Storage Limited (hereinafter, "Metropolitan"). Upon granting reargument, RAMP demands that the Court find that the cross claims should not have been dismissed. RAMP also claims that a branch of its motion for summary judgment on its cross claims against D'Agostino remains outstanding.
CPLR Rule 2221(d) provides that a motion for leave to reargue: "(1) shall be identified specifically as such; (2) shall be 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; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." At the time the instant motion was submitted, the Court had ordered all parties in this litigation to timely file motions for reconsideration under CPLR Rule 2221 that were directed toward the Court's earlier decisions, including the opinions issued on June 14, 2010, or be barred from relief. RAMP's motion is submitted pursuant to that direction.
As relevant here, the Court notes that the underlying motion that RAMP seeks to reargue is D'Agostino's summary judgment motion seeking dismissal of all claims and cross claims in Action No. 1 against D'Agostino. RAMP seeks to reargue the motion to the extent that it sought dismissal of RAMP's cross claims against D'Agostino. RAMP also seeks to reargue Metropolitan's summary judgment motion which, among other things, dismissed RAMP's cross claims against Metropolitan.
Opposition to Reargument
Concerning the instant application, Metropolitan opposes RAMP's reargument pointing out that Movants failed to submit a complete set of papers and exhibits that were originally filed with the underlying motions. Without these papers, Metropolitan argues, the Court cannot determine whether, in fact, it overlooked or misapprehended any relevant facts or law. Indeed, various courts have withheld reargument based upon a movant's failure to submit a complete set of papers relevant to the underlying motion (see generally, Sheedy v. Pataki, 236 AD2d 92 [3rd Dept. 1997] [within trial court's discretion to deny reargument for failure to resubmit papers submitted upon prior motion]). D'Agostino echoes Metropolitan's call that the RAMP movants failed to meet the burden upon the reargument issue.
Likewise, Charter Oak Fire Insurance Company (a/s/o Heating and Burner Supply, Inc.); 479 Walton LLC; Andres Nitze; Travelers Indemnity Company of Connecticut (a/s/o Teamwork Foundation); and the Automobile Insurance Company of Hartford (a/s/o Bruce Hirschfeld and Jane Calderon) join the opposition to reargument for the same reasons as D'Agostino and Metropolitan.
None of the answering parties accept Movants' claim that RAMP's answering papers directed toward the original underlining motions were in fact filed. Each answering party insists that RAMP made no showing that the Court either failed to comprehend the relevant facts or misapplied any controlling legal principle.
The Court directs that the parties stipulate respecting any factual dispute as to whether RAMP filed opposition papers to the questioned motions.
In reply, the RAMP movants attempt to distinguish their case by arguing that the documents that were not submitted were never in their possession and, in any event, are not relevant to the Court's decision herein. Movants say they have filed all relevant motion papers that were submitted for the underlying motions and included the relevant lease agreement as an exhibit herein. Movants claim that they cannot be required to produce the entire record because they may not have been served with complete documents when the original submissions were made because service was by email. Notwithstanding, Movants ask the Court for opportunity to request missing documents from the answering parties in order to submit them to the Court (see, RAMP's Memorandum of Law in Reply and in Further Support of Motion to Reargue, p. 5).
Legal Discussion
Clearly, movants are responsible for filing a complete record upon which a court can decide an application (see, CPLR Rule 3212[b]). A court has no obligation to retrieve from the Clerk papers filed with a previous motion in the same case. "Because a Supreme Court Justice does not retain the papers following his or her disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions, Supreme Court properly required plaintiffs to submit to it all papers that were to be considered on the instant motion" (see, Sheedy v Pataki, supra). In this case, RAMP admits that its submission fails to include the complete papers that were submitted with the motions for which RAMP now seeks reargument. In fact, RAMP asks leave to supplement the record to provide missing exhibits (see, RAMP's Memorandum of Law in Reply and in Further Support of Motion to Reargue, pp. 3 and 4).
In the absence of a complete record, as here, a Court is not presented with the full context for intelligent review and decision in making of an instant application (see generally, Cohen v. Romanoff, 27 Misc 3d 1208A [Sup. Ct. Kings 2010]; Lower Main St. LLC v. Thomas Re Partners, 2005 NY Misc. Lexis 3304 [Sup. Ct. Nassau 2005]). It is the responsibility of a moving party to assemble complete papers which document the procedural history of an application and provide a proper foundation for the relief requested (see, generally, Fernald v. Vinci , 13 AD3d 333 [2nd Dept. 2004]). This is true for motions to reargue (see generally, JDM Import Co., Inc. v. Hartstein, 2008 NY Slip Op 30668U [Sup. Ct. New York 2008]). Further, a court may generally refuse to consider improperly submitted papers (see generally, Loeb v. Tanenbaum, 124 AD2d 941 [3rd Dept. 1986]).
In this litigation, the Court is faced with more than one hundred parties and third parties, more than twenty motion sequences, countless cross and counter claims, and equally voluminous cross and counter motions, all presenting a case of huge proportions. Dozens of volumes of exhibits and related papers, together with innumerable applications and motions to reconsider, renew, and/or reargue were submitted throughout case pendency. Several justices and judicial hearing officers have earlier been involved in these matters, which include transfers and consolidations from Nassau County Supreme Court. Literally scores of decisions and orders have been issued during the approximate two years the case has been before this bench for motion practice. Especially in light of this litany, the burden created by an incomplete record seriously hinders the practical and efficient management of this extremely complex litigation (see generally, Acevedo-Garcia v. Monroig, 56 Fed.R. Serv. 3d 971 [1st Cir. 2003]; opinion subsequently withdrawn upon submission of complete record, Acevedo-Garcia v. Monroig, 351 F3d 547 [3rd Cir. 2003]) and does violence to the laudable goal of conserving the economy of judicial time. Based upon the foregoing, Movants Jerome Ackerman's, Barbara Ackerman's, Gary Ackerman's, and Irwin Ackerman's motion to reargue is DENIED with leave to renew. Additionally, on this record, the Court cannot evaluate RAMP's claim that a branch of its motion for summary judgment on its cross claims against D'Agostino is still outstanding. The record must contain all relevant papers that were before the Court in order to make this determination (see generally, Elkin v. Urarn Assocs., 72 AD3d 734 [2nd Dept. 2010]). Movants are required to appropriately respond to this decision and order within 30 days of entry herein. The foregoing constitutes the decision and order of the Court. Justice of the Supreme Court and does violence to the laudable goal of conserving the economy of judicial time.
RAMP's motion to reargue is denied because of failure to submit the full record concerning its underlying motion. The Court notes that because of the size and scope of this litigation, including many times duplicative and over lapping — notwithstanding procedurally defective — pleadings, the Court, in its discretion, has accommodated and not previously penalized the parties for failure to fully comply with CPLR Rule 3212(b) in their moving papers. This broad latitude, however, only serves to protract and prolong.
Upon any resubmission herein, counsel are admonished the rule requires a complete set of all pleadings implicated in any underlying motion. CPLR Rule 3212 (b) mandates that a motion for summary judgment be supported by a complete copy of the pleadings. Without such pleadings, the motion is procedurally defective (see, Roach v. AVR Realty Co., LLC, 41 AD3d 821 [2nd Dept. 2007]) (see generally, Gonnerman v. Huddleston, 48 AD3d 516 [2nd Dept. 2008] and Wider v. Heller, 24 AD3d 433 [2nd Dept. 2005]). The parties are directed to cooperate in the submission of the full record. The complete pleadings are especially vital because a summary judgment motion must identify any cross claims involved.
Movants must show that they complied with CPLR Rule 3212(b) when the claimed summary judgment motion was originally submitted or bear the brunt of insufficiency.
The Court read the following papers in considering the instant motion: (1) Notice of Motion for Reargument with supporting affidavit and exhibits; (2) Affirmation in Opposition of Seth I. Weinstein, Esq., (3)Affirmation in Opposition to Motions for Leave to reargue in Action #4 of Robert C. Sheps, Esq., (4) Affirmation in Opposition to Motion to Reargue of Vincent J. Batista; (5) Affirmation in Reply and in Further Support of Motion to Reargue of Rosann Feller, Esq.; (6) Memorandum of Law of Rosann Feller, Esq., and (7) Memorandum of Law in Reply and in Further Support of Motion to Reargue of Rosann Feller, Esq.
Based upon the foregoing, Movants Jerome Ackerman's, Barbara Ackerman's, Gary Ackerman's, and Irwin Ackerman's motion to reargue is DENIED with leave to renew. Additionally, on this record, the Court cannot evaluate RAMP's claim that a branch of its motion for summary judgment on its cross claims against D'Agostino is still outstanding. The record must contain all relevant papers that were before the Court in order to make this determination (see generally, Elkin v. Urarn Assocs., 72 AD3d 734 [2nd Dept. 2010]).
Movants must show that they complied with CPLR Rule 3212(b) when the claimed summary judgment motion was originally submitted or bear the brunt of insufficiency.
Movants are required to appropriately respond to this decision and order within 30 days of entry herein.
The foregoing constitutes the decision and order of the Court.
The Court read the following papers in considering the instant motion: (1) Notice of Motion for Reargument with supporting affidavit and exhibits; (2) Affirmation in Opposition of Seth I. Weinstein, Esq., (3)Affirmation in Opposition to Motions for Leave to reargue in Action #4 of Robert C. Sheps, Esq., (4) Affirmation in Opposition to Motion to Reargue of Vincent J. Batista; (5) Affirmation in Reply and in Further Support of Motion to Reargue of Rosann Feller, Esq.; (6) Memorandum of Law of Rosann Feller, Esq., and (7) Memorandum of Law in Reply and in Further Support of Motion to Reargue of Rosann Feller, Esq.