Opinion
Index No.: 60595/2014
09-15-2017
BASHIAN & FARJBER, LLP and GARY E. BASHIAN, P.C., Plaintiffs, v. RICHARD SYMS, RICHARD SYMS AS TRUSTEE OF THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11, 2014; INEVA SYMS aka I, EVE SYMS aka EVE SYMS; INVEVA SYMS aka I, EVE SYMS as TRUSTEE OF THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11, 2014; THE SYMS FAMILY REVOCABLE TRUST DATED MARCH 11, 2014; and John Docs #1-10, Defendants.
To: Irving O. Farber, Esq. Bashian & Farber, LLP Attorneys for Plaintiffs 235 Main Street, 6th Floor White Plains, New York 10601 Landman Corsi Ballaine & Ford P.C. Attorney for Michael D. Lynch 120 Broadway, 27th Floor New York, NY 10271 Michael S. Haber, Esq. Attorney for Defendant Ruth Merns 225 Broadway, Suite 3010 New York, New York 10007
NYSCEF DOC. NO. 511 NYSCEF DOC. NO. 508 DECISION & ORDER
On Motion to Reargue
Sequence No. 16 WOOD, J.
The following documents were read in connection with plaintiffs' motion to reargue/renew, as opposed by Ruth Merns ("Merns") and Michael D. Lynch, Esq. ("Lynch"):
Plaintiffs' Notice of Motion, Counsel's Affirmation, Exhibits.
Lynch's Counsel's Opposition, Exhibits, Memorandum of Law, Lynch Affidavit.
Merns' Counsel's Affirmation.
Plaintiffs' Counsel's Reply Affirmation, Exhibit.
The gravamen of plaintiffs' underlying action was to recover reasonable legal fees from Defendant Richard Syms, which remain unpaid in the amount of $329,068.90. Plaintiffs now move pursuant to CPLR §2221, for leave to renew and/or reargue this court's decision and order dated May 18, 2017, wherein the motions to dismiss of Ruth Merns ("Merns") and Michael D. Lynch, Esq. (Lynch") were granted and plaintiff's cross-motion to amend the complaint to include a cause of action sounding in aiding and abetting fraud against Lynch and Merns was denied. Plaintiffs are also seeking pursuant to CPLR 3025 to further amend plaintiffs' complaint to add a cause of action sounding in negligence against Lynch.
In the instant application, plaintiffs claim that there is now ample evidence to establish both Lynch's and Mern's substantial assistance of the ongoing alleged fraud undertaken by the Syms defendants in the alleged fraudulent transfer of the Lewisboro Property, to wit: as to whether fair consideration was paid for that transfer of the Lewisboro Property, which was purportedly for estate planning purposes. Plaintiffs speculate that surely Lynch knew not only that there was no legitimate estate planning purpose to the initial series of transfers, but that there was equally no such legitimate estate planning purpose served by a transfer and/or sale of the Lewisboro Property to Merns, be it with our without fair consideration.
Merns and Lynch oppose the motion. Merns' attorney raises that after three years of litigation, plaintiffs have not explained how receiving $250,000 in exchange for a parcel of land with an estimated value lower than the sales price could possibly constitute part of a conspiracy to defraud plaintiffs; nor do they explain how the Syms' receipt of $250,000 could hinder, delay and defraud plaintiff from collecting money allegedly owed to them; and do not provide the role that 90 year old Merns played with regard to defrauding plaintiff law firm, to which she has no privity.
Lynch asserts that a transfer of property for no consideration is a valid estate planning alternative between family members. "The Syms explained to me that these transactions were undertaken for estate planning purposes and it was clear to me that the type of trust into which the property was transferred was one that is commonly used in the estate planning profession to among other things, simplify the probate process" (See Affidavit of Michael D. Lynch, Esq.).
Under CPLR 2221, "a motion for leave to renew must be based upon new or additional facts, which although in existence at the time of the original motion, were not made known to party seeking renewal, and were not known to the court" (Morrison v Rosenberg, 278 AD2d 392 [2d Dept 2000]). Leave to renew is "not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion" (Orange and Rockland Utilities, Inc. v Assessor of the Town of Haverstraw, 304 AD2d 668, 669 [2d Dept 2003] quoting Stone v Bridgehampton Race Circuit, 244 AD2d 403 [2d Dept 1997]). However, the rule is flexible and additional or new facts that were known to the movant on its initial application, may be offered if the movant first establishes a reasonable excuse as to why the additional facts were not submitted on the original application (Matter of Gold v Gold, 53 AD3d 485, 487 [2d Dept 2008]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Cent. Mortgage Co. v Resheff, 136 AD3d 962, 963 [2d Dept 2016]). The Second Department has found that the Supreme Court "lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" (Cent. Mortgage Co. v Resheff, 136 AD3d at 963).
Plaintiffs argue that based on the documentary evidence obtained from discovery disclosures after the Motions to Dismiss were fully submitted new facts have come to light that warrant renewal. Allegedly discovery documents suggest that Lynch provided additional services, that he was paid more than $800, and that there was no consideration for the transfer of the Lewisboro Property. Taking into consideration the parties' arguments and submissions, plaintiff's assertions of new facts are not sufficient to grant their leave to renew.
Further, plaintiffs argue that the court overlooked relevant facts and controlling principles of law. Under CPLR 2221(d), motions for reargument are "addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision" (Mazzei v Licardi, 47 AD3d 774 [2d Dept 2008], citing Carillo v PM Realty Group, 16 AD3d 611 [2d Dept 2005]; Singleton v Lenox Hill Hospital, 61 AD3d 956, 957 [2d Dept 2009]). A motion for reargument is "not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented" (Gellert & Rodner v Gem Community Management, Inc. 20 AD3d 388 [2d Dept 2005]; McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]). Nor does it function as a forum to proffer arguments "different from those originally tendered" (Amato v Lord & Taylor, 10 AD3d 374, 375 [2d Dept 2004]) or on a new theory of law not previously advanced (Frisenda v X Large Enterprises, Inc., 280 AD2d 514, 515 [2d Dept 2001]). Rather, the movant must satisfactorily demonstrate matters of fact or law allegedly overlooked or misapprehended on the prior motion (Matter of Hoffman v Debello-Teheny, 27 AD3d 743 [2d Dept 2006]). New facts may not be submitted or considered by the court (Trahan v Gallea, 48 AD3d 791, 792 [2d Dept 2008]; Quinn v Menzel, 282 AD2d 513 [2d Dept 2001]). Moreover, a motion for leave to reargue must be identified specifically as such, and must be made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry(see CPLR 2221(d)(3)). Courts have allowed a motion for reargument to be made after the statutory time frames in CPLR 2221(d)(3) have expired if a timely notice of appeal has been served and filed (Itzkowitz v. King Kullen Grocery Co, 22 AD3d 636[2d Dept 2005]). Indeed, this court has discretion pursuant to CPLR §2004 to extend the time fixed by statute "as may be just and upon good cause shown" CPLR §2004; Itzkowitz at 638. In addition, courts have automatically denied motions to reargue based upon the movant's failure to include with the motion a complete set of the original papers, as they are germane to said motion to reargue (see, Connors, Supplementary Practice Commentaries McKinney's Cons. Laws of N.Y. C2221:7;).
The Court after a thorough review of the papers presented in the prior determination, finds that there was a substantial basis for its decision. In reaching its decision to deny reargument, the merits of plaintiffs' position have not been addressed herein, because to do so might trigger an appealable issue, where normally an appeal does not lie in a reargument motion (Price v. Palagonia, 212 AD2d 765 [2d Dept 1995]; Navarette v. Alexiades, 50 AD3d 873 [2d Dept 2008]). Since plaintiffs failed to show that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision, plaintiffs' application for reargument is not supported by the record or the case law, and is denied.
Now, turning to plaintiffs' application to include a cause of action under negligence. CPLR 3025(b) provides that a party may amend and/or supplement pleadings by leave of court or by stipulation of all parties at any time. It is well settled that "leave to amend a complaint should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not result in surprise or prejudice to the opposing party" (Old World Custom Homes, Inc. v Crane, 33 AD3d 600 [2d Dept 2006]; Lucido v Mancuso, 49 AD3d 220 [2d Dept 2008]).
Here, plaintiffs submitted a proposed Verified Second Amended Complaint, that includes as for the Seventh Cause of Action in Negligence against Lynch, that Lynch owed a duty of care to plaintiffs to not deviate from the acceptable standards of practice. In the absence of privity, Lynch owed a duty of care to plaintiffs as they were in near privily, in effecting the transfer of the Lewisboro property from the Syms defendants to Merns and Lynch breached his duty of care to plaintiffs; and that Lynch knew or should have known that the transfer of the Lewisboro property was fraudulent and intended to render the Syms defendants either insolvent and or judgment proof so as to avoid the debt owed to plaintiffs. Moreover, plaintiffs claim that Lynch breached his duty to plaintiffs when he failed to ensure that there was no pending or active litigation against the Syms defendants regarding the Lewisboro Property.
To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (Fox v Marshall, 88 AD3d 131, 135, [2d Dept 2011]). Here, plaintiffs have not demonstrated that a duty owed by Lynch to his client Syms could be extended to an unknown third party, such as plaintiffs. Based upon this record, and even considering the minimal threshold burden, the court finds that plaintiffs' proposed second amended complaint regarding the cause of action for negligence as against Lynch, is palpably insufficient as a matter of law or totally devoid of merit (Clark v Clark, 93 AD 3d 812[2d Dept 2012].
In view of the foregoing, it is
ORDERED, that plaintiffs' motion for leave to reargue/renew the court's prior determination is Denied; and it is further
ORDERED, that plaintiffs' motion to amend the pleadings is denied; and it is further
ORDERED, that Lynch shall serve a copy of this order with notice of entry upon the parties to this matter within ten (10) days of entry, and file proof of service within five (5) days of service.
All other relief requested and not decided herein is denied.
This constitutes the Decision and Order of this Court. Dated: September 15, 2017
White Plains, New York
/s/ _________
HON. CHARLES D. WOOD
Justice of the Supreme Court To: Irving O. Farber, Esq.
Bashian & Farber, LLP
Attorneys for Plaintiffs
235 Main Street, 6th Floor
White Plains, New York 10601
Landman Corsi Ballaine & Ford P.C.
Attorney for Michael D. Lynch
120 Broadway, 27th Floor
New York, NY 10271
Michael S. Haber, Esq.
Attorney for Defendant Ruth Merns
225 Broadway, Suite 3010
New York, New York 10007