Opinion
6663-06.
January 31, 2008.
DECISION ORDER
Papers Read on this Motion:
Defendants' Order to Show Cause 02 Plaintiff's Affirmation in Opposition XX Defendants' Reply Affirmation XXThe Defendants, Mark Nash a/k/a Mark W. Nash and Jacqueline Nash move for an Order pursuant to CPLR § 2221, granting them leave to reargue and/or renew the Plaintiff's Motion which resulted in the Court's September 12, 2007 Decision and Order.
This action arises from an aborted real estate transaction for the sale of a one family home located in Merrick New York between the Plaintiff, as seller, and the Defendants, as purchasers. On February 15, 2006, Defendants executed the contract of sale and issued a check made payable to the plaintiff's attorney in the amount of $84,700 representing the down payment on the transaction. The next day, counsel for the Defendant purchasers sent the contracts to sellers' attorney by regular mail. In the mean time, on February 17, 2006, the buyers apparently decided not to proceed with the transaction and notified only their real estate agent of their intent. Plaintiff executed the Contract of Sale on February 18, 2006. On February 21, 2006, the sellers stopped payment on their down payment check.
On March 8, 2007, Plaintiff moved for an Order awarding it summary judgment against the Defendants in the principal sum of $84,700 together with interest from February 18, 2006, i.e., on the date that the contracts were fully executed. The Defendants opposed the motion. The parties disagreed as to when the seller was notified of the buyers' decision to terminate the contract. Based upon the contract provisions, including paragraphs 43 and 47, this Court in its prior Decision and Order dated September 12, 2007 held:
"It was unreasonable for the Defendant-Buyer to communicate their desire to cancel the sale solely to their broker knowing that the last transaction (signing of the contract) was done in the presence of their attorney with the knowledge that the contract was being delivered to the Plaintiff-Seller's attorney with the down payment."
This Court found that the contract clearly established that "if either party had any modifications to the sale, they would have to communicate through their respective attorneys" and that, pursuant to paragraph 47, "the rescission should have been in writing." Accordingly, this Court granted plaintiff's application for summary judgment.
Upon the instant motion to reargue their opposition to Plaintiff's summary judgment motion, Defendants submit that "this Court 'overlooked' or 'misapprehended' that there were issues of fact, to wit, whether there was a 'meeting of the minds' between the parties and when Sagamore learned of Nash's termination of the proposed deal, each of which preclude summary judgment" ( Aff in Support, ¶ 28).
CPLR § 2221 (f) provides as follows:
A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.
The movants have failed in their motion papers herein, to specifically identify whether they seek to renew or reargue the prior decision and order of this Court, this Court is compelled to address it separately.
A motion for leave to reargue is to be based upon matters of fact or law allegedly overlooked or misunderstood by the Court in determining the prior motion. It is addressed to the sound discretion of the Court ( Hoey-Kennedy v Kennedy, 294 AD2d 573 [2nd Dept 2002]; Long v Long, 251 AD2d 631 [2nd Dept 1998]). A motion to reargue is not a means for an unsuccessful party to obtain a second opportunity to relitigate issues that have been previously decided ( McGill v Goldman, 261 AD2d 593 [2nd Dept 1999]; Pahl Equipment Corp. v Kassis, 182 AD2d 22 [1st Dept 1992]). A motion to reargue may be granted only upon a showing that the Court, in its earlier determination, either overlooked or misapprehended the facts or the law or arrived at its prior decision by mistake ( Marini v Lombardo, 17 AD3d 545 [2nd Dept 2005]; Carillo v PM Realty Group 16 AD3d 611 [2nd Dept 2005]).
In this case, Defendants add little to the arguments they previously advanced to support a finding that they canceled the Contract of Sale prior to their attorney receiving a fully executed copy thereof. In this Court's prior Order, it was held that what is controlling in this case is the contract; thus, absent any indication herein that this Court misapprehended or overlooked facts relating to the buyers' compliance with the contract provisions in their communications to their attorney of their desire to cancel the sale, this Court is precluded from giving the Defendants the opportunity to change its prior ruling. Defendants have not offered anything which would require this Court to change its prior ruling. Defendants simply reiterate and reemphasize the same contentions that they have previously espoused and they have failed to make even a prima facie demonstration of any reasonable basis whatsoever for the Court to grant leave to reargue ( Williams v Board of Education of the City of New York, 24 AD3d 458 [2nd Dept. 2005]). This Court, therefore, declines to grant reargument.
With respect to renewal of the motion, it is well settled that a motion for leave to renew must be supported by new or additional facts which, at the time of a prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court (CPLR § 2221[e]; Hasmath v Cameb, 5 AD3d 438, 439 [2nd Dept. 2004]). "However, this requirement is a flexible one and the court, in its discretion, may grant renewal, in the interest of justice, upon facts which were known to the movant where the movant offers a reasonable justification for failing to submit them on the earlier motion" ( Gomez v Needham Capital Group, 7 AD3d 568, 569 [2nd Dept. 2004]; Hasmath v Cameb, supra at 439; Bepat v Chandler, 2 AD3d 764 [2nd Dept. 2003]).
In support of their motion to renew, Defendants submit that the Second Department's September 11, 2007 decision, Sorenson v Brahver, 43 AD3d 903, which was not available at the time this Court rendered its decision, is a change in the law that affects the prior determination herein (CPLR § 2221[e][2]). The Sorenson case also involved an aborted real estate transaction where the buyers executed and delivered four contracts of sale for the purchase of seller's property with a 10% down payment deposit. The seller moved for summary judgment and in doing so submitted the testimony of an employee of the buyers' attorney's office who stated that prior to the receipt of fully executed contracts of sale, she received a telephone call from the buyers who advised her that they were no longer interested in the transaction. The employee then allegedly conveyed the substance of the buyers' message to an unidentified person at the office of the seller's attorney. Counsel for the buyers then also wrote a letter to the seller's attorney returning the two fully executed contracts and indicating again that they were no longer interested in the property. They also stopped payment on the down payment deposit. The Second Department reversed the Supreme Court, Suffolk County granting the seller's motion for summary judgment and held that fact issues precluded summary judgment on issue of whether the purchasers breached the contract for sale of real property.
Defendants' reliance on Sorenson is however misplaced. In Sorenson, the purchasers claimed to have cancelled the contract after having already signed copies thereof. Their decision to cancel the contract was communicated in a telephone call made by an employee of the office of their attorney, not by a real estate agent. The telephone notice was made by the office of the attorney for the buyers directly to the office of the seller's attorney, not to a real estate agent. No intermediaries were used by the purchaser in Sorenson. Here, although Defendants claimed to have decided to cancel the contract on February 17, 2007, they failed to communicate this decision to their attorney.
Accordingly, while this Court grants Defendants' instant motion to renew, upon renewal, it adheres to its original determination. It is hereby:
ORDERED, that the previous issued STAY is VACATED. ORDERED, the parties are directed to appear for an Inquest on Damages in CCP on February 28, 2008 at 9:30 a.m.
This constitutes the DECISION and ORDER of the Court.