Opinion
No. 9166/10.
08-15-2014
FREED, KLEINBERG, NUSSBAUM, FESTA & KRONBERG, MD., LLP, as Successor in Interest to Freed, Scherz, Kleinberg, Nussbaum & Festa, Md, LLP, Plaintiff, v. Jennifer NASTASI, Jason Halegoua, Jason Halegoua, Md., PC and XYZ Corp. d/b/a Peds First Pediatrics, Defendants.
McLauglin & Stern, LLP, New York, attorneys for plaintiff. Bracken, Margolin Besunder, Islandia, NY, attorneys for defendants.
McLauglin & Stern, LLP, New York, attorneys for plaintiff.
Bracken, Margolin Besunder, Islandia, NY, attorneys for defendants.
Opinion
THOMAS F. WHELAN, J.
ORDERED that the defendant' request to be heard at oral argument on this motion is considered under the Rule 20 of the Commercial Division Rules at 22 NYCRR 202.70 and is denied.
ORDERED that this motion (# 005) by the defendants for leave to reargue or for renwal of those portions of the plaintiffs' prior motion for partial summary judgment which were granted as to defendant, Natasi and, alternatively for leave to amend their previously amended answer to add certain defenses is considered under CPLR 2221 and is denied.
The plaintiff commenced this action in March of 2010 to recover damages from the defendants by reason of their allegedly wrongful conduct in establishing a pediatric medical practice that competes with the plaintiff's practice. The individual defendants were employed by the plaintiff as staff physicians for a period in excess of five years prior to their departures in 2009. The corporate defendant is a competing medical practice established by defendant Halegoua in September of 2009 within six miles of one of the medical offices of the plaintiff. Defendant Nastasi joined the corporate defendant, Peds First, in or about February of 2010 which defendant Halegoua had established in September of 2009.
In the complaint served in March of 2010, four causes of action are advanced. In the First, defendant Nastasi is charged with breaching the terms of a January 27, 2010, Settlement Agreement and Release she executed which included the above quoted restrictive covenant precluding her from soliciting the plaintiff's patients for a two year period following her departure from the plaintiff's employ that was effective as of December 31, 2009 and from disparaging the plaintiff. In the Second cause of action, defendant Halegoua and Nastasi are charged with breaches of the fiduciary duties owed to the plaintiff while they were employed by it. In the Third cause of action, all defendants are charged with acts of unfair competition. The Fourth cause of action charges defendant Halegoua and the corporate defendant with interference with the plaintiff's contractual relations. Issue was joined by service of a joint answer by the defendants.
In January of 2013, the plaintiff moved for partial summary judgment on the issue of the individual defendants' liability under the Second cause of action, which sounds in breach of fiduciary duties and on its Third cause of action against all defendants which sounds in unfair competition. By order dated April 4, 2014, the motion was granted only with respect to defendant Nastasi.
By the instant motion, defendant Natasi seeks leave to reargue those portions of the plaintiff's prior motion which were granted and/or for renewal thereof. The moving papers include a request for a limited amendment of the defendants' previously amended answer to include, to the extent not already included in any previously filed answer, the affirmative defenses of release and documentary evidence. The plaintiff opposes the relief sought under CPLR 2221, to which the defendants' counsel has replied. For the reasons stated, the motion is denied.
It is well established that motions for reargument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or the law or for some other reason, mistakenly arrived at its determination (see Butler v. City of Rye Planning Com'n, 114 AD3d937, 980 N.Y.S.2d 831 [2d Dept 2014] ; Anthony J. Carter, DDS, P.C. v. Carter, 81 AD3d 819, 916 N.Y.S.2d 821 [2d Dept.2011] ; Everhart v. County of Nassau, 65 AD3d 1277, 885 N.Y.S.2d 765 [2d Dept 2009] ; McDonald v. Stroh, 44 AD3d 720, 842 N.Y.S.2d 727 [2d Dept 2007] ). CPLR 2221 provides that a motion for leave to reargue “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” (CPLR 2221[d][2] ). A motion for leave to reargue is thus not one which provides an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced. Nor is it one that provides a platform for the presentation of arguments different from those already presented (see V. Veeraswamy Realty v. Yenom Corp., 71AD3d 874, 895 N.Y.S.2d 860 [2d Dept 2010] ); Woody's Lumber Co., Inc. v. Jayram Realty Corp., 30 AD3d 590, 817 N.Y.S.2d 391 [2d Dept 2006] ; Williams v. Board of Educ. of City School Dist. of New York City, 24 AD3d 458, 805 N.Y.S.2d 126 [2d Dept 2005] ; Simon v. Mehryari, 16 AD3d 543, 792 N.Y.S.2d 543 [2d Dept 2005] ).
Here, the court denies the moving defendant's application for reargument since the moving papers failed to establish that the court misapprehended or overlooked material facts presented on the prior application or that it misapplied controlling principles of law in arriving at its determination of said prior application (see Mazinov v. Rella, 79 AD3d 979 supra ; McGill v. Goldman, 261 A.D.2d 593, supra ). The court expressly rejects the defendants' contentions that the release submitted as an attachment to the defendants' submissions, but not addressed in their opposing papers or in any of the plaintiff's submissions, was overlooked by the court thus warranting the granting of leave to reargue (see Federal Natinal Mortgage v. Anderson, 119 AD3d 892, –––– N.Y.S.2d –––– 2014 WL 3732884 [2d Dept 2014 (court may not raise issues on its own accord and may not base its determination of a dispositive motion on grounds neither raised nor briefed by the parties ). To the extent that the instant application for reargument is based upon the existence and content of the release or other new matter and/or arguments not previously advanced, it is rejected as lacking in merit, since the consideration of such new material is not part of the calculus in determining a motion for reargument. Those portions of the instant motion wherein the defendants seek leave to reargue are thus denied.
Also denied is the application for renewal. This application is premised upon claims that the release contained in the Settlement Agreement and Release, which was the subject of the plaintiff First cause of action and was attached to the defendants' opposing papers, was inadvertently not raised as a defense in opposition to the plaintiff motion for partial summary judgment on its Second and Third causes of action. The defendants urge the court to grant renewal pursuant to CPLR 2221 in the interests of justice in the event it is found that these circumstances do not precisely comport with the statutory requirements for renewal.
Pursuant to CPLR 2221(e), a motion for leave to renew “shall be based upon new facts not offered on prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion” (see (Jacobson v. Adler 119 AD3d 902, 989 N.Y.S.2d 898, 2014 WL 3732874 [2d Dept 2014] ; Mellon v. Izmirligil, 88 AD3d 930, 931 N.Y.S.2d 667 [2d Dept 2011] ; Siegel v. Morsey New Sq. Trails Corp., 40 AD3d 960, 836 N.Y.S.2d 678 [2d Dept 2007] ). The motion must be predicated upon new or additional facts that were not known to the party seeking renewal or, in the discretion of the court, on facts or material known to such party at the time of the original motion (see Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585, 953 N.Y.S .2d 301 [2d Dept 2012] ; see also DeMarquez v. Gallo, 94 AD3d 1039, 943 N.Y.S.2d 169 [2d Dept 2012],). In either case, “[t]he 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” (Leone Properties, LLC v. Board of Assessors for Town of Cornwall, 81 AD3d 649, 916 N.Y.S.2d 149; see Rowe v. NYCPD, 85 AD3d 1001, 926 N.Y.S.2d 121 [2d Dept 2011] ), since 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 (see Ali v. Verizon NY, Inc., 116 AD3d 722, 982 N.Y.S.2d 903 [2d Dept 2014] ; Joseph v. Simmons, 114 AD3d 644, 979 N.Y.S.2d 675 [2d Dept. 014] ; Yebo v. Cuadra, 98 AD3d 504, 949 N.Y.S.2d 451 [2d Dept 2012] ; Sobin v. Tylutki, 59 AD3d 701, 873 N.Y.S.2d 743 [2d Dept 2009] ; Worrell v. Parkway Estates, LLC, 43 AD3d 436, 437, 840 N.Y.S.2d 817 [2d Dept 2007] ).
Here, the release at issue was part of the record on the prior motion as it was presented by the defendants in their opposing papers. However, neither its existence nor its contents were addressed in the defendants' submissions in opposition nor in the plaintiff's reply papers. The fact that the release was not addressed in the plaintiff's' moving papers is of no consequence, as its motion did not include a request for relief on its First cause of action in which it sought damages from defendant Natasi for her purported breach of the Settlement and Release document containing the release asserted here. Assuming, without so finding, that the release and its contents now presented to the court on this motion constitute “new facts” or material within the contemplation of CPLR 2221(e), they do not warrant any change in the court's prior determination (see Kranenberg v. TKRS Pub, Inc., 99 AD3d 769, 952 N.Y.S.2d 219 [2d Dept 2012] ; Kevin Kerveng Tung, P.C. v. JP Morgan Chase & Co., 105 AD3d 709, 963 N.Y.S.2d 145 [2d Dept 2013] ),
In any event, the court finds that the defendants failed to demonstrate reasonable justification for the failure to present such facts on the prior motion. The existence and content of the release was clearly known to the defendants at the time of the prior motion as it was the subject of the plaintiff's First cause of action and it was attached as an exhibit to the defendants' submissions in opposition to the prior motion for partial summary judgment on the Second and Third causes of action. While the court, in the exercise of its discretion, is entitled to grant renewal under such circumstances, the claims of inadvertence and/or law office failure advance here are insufficient to warrant the exercise of that discretion here (see Abu Dhabi Commercial Bank, P.J.S.C. v. Credit Suisse Securities (USA), 114 AD3d 432, 979 N.Y.S.2d 571 [1st Dept 2014] ; Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585, 585–586, 953 N.Y.S.2d 301 [2d Dept 2012] ). The defendants' application for renewal is thus denied.
Finally, the court denies the defendants' request for leave to amend their answer to assert the affirmative defense of release and documentary evidence. This nuanced and vague alternative application was merely a demand for such relief as there was no discussion by the defendants of the basis for the granting of such relief in either their supporting or reply papers. Under these circumstances and in view of the failure to attach a proposed amended answer, the application is denied. However, such denial is without prejudice to a new application for such relief upon a proper papers.