Opinion
5291-06.
Decided August 31, 2009.
Michael H. Kane, Esq., Attorney for Plaintiff, New York, NY.
Robert G. Schneider, Esq., Attorney for Defendant, Yonkers, NY.
Plaintiff commenced this breach of contract action in October 2006 seeking to recover payment for consulting services rendered to defendant. By Decision and Order dated January 12, 2009, this Court (J. Seiden) granted the defendant's motion for summary judgment dismissing the summons and complaint on the ground that the action was time barred. In reaching its decision, the Court found that plaintiff had failed to offer sufficient evidentiary proof of his labor for the contested time period and failed to provide a reasonable excuse for the absence of such evidence. Plaintiff filed a Notice of Appeal on February 24, 2009 and subsequently filed the instant motion.
Plaintiff now moves for renewal and reargument of the Court's prior decision. Defendant opposes the motion.
"A motion for reargument is addressed to the sound discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law' ( Foley v Roche, 68 AD2d 558, 567 (1st Dept. 1979)). A motion to renew is based upon additional material facts which existed at the time the prior motion was made but which were not made known to the court" ( F G Heating Co. Inc. v Bd of Education, 103 AD2d 791 (2d Dept. 1984)).
On this motion for "renewal and reargument", the plaintiff presents no new facts or evidence, but instead argues that it was premature to dismiss his complaint without discovery having been conducted and further, that the Court misapprehended the law and the nature of plaintiff's burden of proof. Since plaintiff raises no new facts, the Court will treat plaintiff's application as a motion to reargue ( Syracuse Bros, Inc. v Darcy, 127 AD2d 588 (2d Dept 1987) (holding regardless of a party's designation, motion failing to raise any new facts which were previously unavailable constitutes one for reargument and its denial is not appealable).
In his affidavit, plaintiff affirms that his consulting services were provided pursuant to an oral contract. He did not specify exact dates in his Affirmation in Opposition to the original motion because he is not sure of them and wanted to err on the side of caution. He further states that it was premature to dismiss his complaint without giving him the opportunity to generate corroborating evidence through depositions or document production, or to question defendant's president regarding his denial that plaintiff's employment continued well into 2001. Plaintiff affirms that he no longer has telephone records, notes or correspondence in his possession, but that it may exist in the possession and control of defendant or defendant's former employees.
In further support of the motion, plaintiff's counsel affirms that documentary evidence supplementing the affidavit is not a prerequisite to denial of a summary judgment motion. He argues that plaintiff may prevail based upon the credibility of his testimony, or based upon evidence that is developed during discovery. He argues that plaintiff's affidavit opposing the motion contained names, approximate dates, and a description of the services performed. Counsel further argues that the discovery process would afford plaintiff the opportunity to locate documentary evidence that may be in possession of the defendant or its employees. In a Memorandum of Law submitted with the motion, counsel provides a case by case interpretation of the cases cited in the Court's prior decision. In each case, counsel points that plaintiff's affidavit, though lacking documentary evidence, was made by a person with personal knowledge and included detailed activities, dates and names, and if taken as true, establish triable issues of fact. Finally, counsel argues that contrary to the Court's interpretation of the Appellate Term decisions in Weinrich v A.H. Robins Co., 96 AD2d 860 (2d Dept 1983) and Nucear Facilities Inc., v Advance Relocation and Storage, 173 AD2d 802 (2d Dept 1991), an oppositional affidavit made by a person with personal knowledge of the facts need not be accompanied by documentary evidence to defeat a summary judgment motion.
In opposition to the motion, defense counsel argues that the affidavit of plaintiff in support of this motion to reargue and renew is virtually identical to plaintiff's affidavit in opposition to the summary judgment motion. He argues that plaintiff's own documents show that any services he performed for the defendant were prior to May 19, 2000. Specifically, plaintiff's invoice as well as subsequent letters sent by plaintiff to defendant all conclusively show that the last work performed by the plaintiff ended in May 2000. Counsel further argues that plaintiff's self-serving affidavit is clearly not sufficient to show otherwise, especially in this case where there is clear, documented evidence consisting of plaintiff's own invoice and subsequent letters, as well as defendant's president's email, which all show that plaintiff performed no work after May 2000. Finally counsel argues that contrary to plaintiff's attorney's claim, the cases cited by the Court are right on point.
In light of the foregoing, plaintiff's motion to reargue is denied. Plaintiff's self-serving affidavit and lack of documentary evidence failed to rebut the well-supported summary judgment motion, which supported defendant's claim that plaintiff's employ ended in May 2000. Defendant established its prima facie entitlement to judgment as a matter of law by submitting correspondence between defendant and plaintiff over the relevant time period. As evidence, defendant submitted an e-mail from May 1, 2000, from defendant to plaintiff, in which defendant terminated their business relationship.
Defendant also submitted plaintiff's response, dated May 19, 2000. That letter expressed plaintiff's disappointment at defendant's decision to terminate their business relationship. In the letter, plaintiff refers to some 55 to 60 hours that he worked for defendant, from 1999 to May of 2000. He sets the value of those hours at $13,750 (at $250.00 per hour), and separately, provides a limited breakdown of the hours and the approximate months and year in which plaintiff rendered his services. Defendant submitted one additional letter, dated July 24, 2001. That letter, from plaintiff to defendant, was in response to defendant's request for a copy of the May 2000 bill, but cited no new work.
The burden then shifted to the plaintiff to come forward with evidence sufficient to raise a triable issue of fact Zuckerman v City of New York, 49 NY2d 557). As proof, plaintiff submitted an affidavit setting forth a list of nine conversations and meetings he held with specific individuals and entities on defendant's behalf. However, plaintiff left the dates vague, cited as occurring during a period of various months, seasons or, more generally, after May 2000 and during an unspecified time frame in 2001. Occasionally, plaintiff indicated that a meeting occurred during a two month time frame, but provided no more specifics. Plaintiff submitted no direct or documentary evidence such as time sheets, notes from meeting, daily schedules, phone bills or other documentary substantiation of his claimed work in the second half of 2000 and throughout 2001. The Court denied the motion, finding that the facts presented in opposition, without documentary evidence, were insufficient to withstand the proof submitted in favor of the motion. It is well settled that unsubstantiated allegations are insufficient to raise a triable issue of fact ( Rebecchi v Whitmore, 172 AD2d 600 (2d Dept 1991); V. Savino Oil Heating Co., Inc. v Rana Management Corp., 161 AD2d 635 (2d Dept 1990)).
Furthermore, this Court rejects plaintiff's contention that the Court's decision was premature because discovery had not occurred. A party who claims ignorance of critical facts to defeat a motion for summary judgment must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue ( Cruz v Otis Elevator Co., 238 AD2d 540 (2d Dept 1997) (finding speculations about what discovery might reveal are insufficient to defeat a motion for summary judgment); citing Rothbort v SLS Mgt Corp., 185 AD2d 806; State of New York v Wisser Co., 170 AD2d 918; Kenworthy v Town of Oyster Bay, 116 AD2d 628; see also Romeo, et al v City of New York, et al, 261 AD2d 379 (2d Dept 1999) (summary judgment dismissing complaint may be granted where discovery not completed and if there is only hope and speculation as to what additional discovery would uncover).
Here, plaintiff commenced this action in 2006, Issue was joined in January 2008 and the motion for summary judgment was brought some six months later. Plaintiff did not avail himself of discovery during the six month period between the filing of the Answer and the filing of the motion. In fact, plaintiff filed a Notice of Trial and Statement on April 18, 2008 declaring readiness for trial, advising the Court that "No demand or order for a bill of particulars has been made" and that "There has been a reasonable opportunity to complete all preliminary proceedings allowed by any applicable rule or statute." Accordingly, the matter was set down for a pre-trial conference on June 18, 2008 and adjourned to June 27, 2008. Defendant filed the motion on or about July 2, 2008. Plaintiff cannot now claim that he was deprived of discovery. Plaintiff's failure in presenting sufficient evidentiary facts in opposing the motion on the basis that facts needed "may" be in the possession of the defendant or its employees is unavailing and cannot be excused ( Douglas Manor Assoc Inc. v Alimaras, et al, 215 AD2d 522 (2d Dept 1995) (opponent of summary judgment motion's claim that facts needed were exclusively within the knowledge of moving party not well taken because opposing party failed to conduct the necessary discovery in action pending for more than a year); see also Hanneford Circus, Inc. v Caba Circus Promotions, 201 AD2d 456 (2d Dept 1994). Plaintiff's own inaction is responsible for his failure to ascertain any facts exclusively within defendant's knowledge and the Decision granting defendant's summary judgment motion to dismiss the complaint will not be disturbed.
Plaintiff's motion to reargue is denied.
This constituted the Decision and Order of this Court.
The Court considered the following papers on this motion: Notice of Motion, dated February 23, 2009; Affidavit in Support; Exh. A-E; Memorandum of Law in Support. Affirmation in Opposition, dated April 15, 2009. Reply Affirmation, dated April 21, 2009.