Opinion
LT-76854/18 KI
08-29-2019
819 REALTY GROUP LLC, Petitioner-Landlord, v. BEAST FITNESS EVOLVED LLC, Respondent-Tenant, "XYZ Corp", Respondent-Undertenant.
Matthew Meisel, Belkin Burden Wenig & Goldman LLP, 270 Madison Avenue, New York, New York 10016, (212)-867-4466, Counsel for Petitioner Robert Ehrenfeld, Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, New York 10704, (914)-375-0100, Counsel for Respondent
Matthew Meisel, Belkin Burden Wenig & Goldman LLP, 270 Madison Avenue, New York, New York 10016, (212)-867-4466, Counsel for Petitioner
Robert Ehrenfeld, Novick Edelstein Pomerantz P.C., 733 Yonkers Avenue, Yonkers, New York 10704, (914)-375-0100, Counsel for Respondent
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a),
OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
NOTICE OF MOTION & AFFIDAVIT OF SERVICE 1-2
AFFIRMATION IN SUPPORT 3
AFFIRMATION IN OPPOSITION 5
REPLY AFFIRMATION 6
INTRODUCTION
Petitioner moves This Honorable Court by Notice of Motion, Opposed, pursuant to CPLR 2221 (d) for an Order granting Petitioner Leave to Reargue and by This Court sua sponte for Leave to Renew pursuant to CPLR 2221 (e) Decision and Order of This Court dated May 24, 2019, and entered by the Clerk of the Court on May 28, 2019, denying Petitioner's Underlying Motion ( 819 Realty Group LLC v. Beast Fitness Evolved LLC , 2019 NY Misc LEXIS 2976, 2019 NY Slip Op 50907 [U], 63 Misc 3d 1237 [A], 2019 WL 2440328 ). For the reasons set forth below, Petitioner's motion for Leave to Reargue and This Court's sua sponte Leave to Renew are DENIED.
PROCEDURAL AND FACTUAL HISTORY
Petitioner and Respondent entered into a lease agreement, dated September 28, 2016, for leasehold under construction without certificate of occupancy. Petitioner alleges Respondent, a fitness club, has caused an insurance default under the lease by failing to obtain and continuously maintain rent insurance for base rent and additional rents for a period of 12 months. On May 31, 2018, Petitioner served Respondent with a Fifteen Day Notice of Default and Opportunity to Cure, demanding Respondent to cure on or before June 20, 2018, and in part alleging the following:
Oftentimes as in this instant matter herein, a commercial lease requires tenant to carry a policy of "rent insurance". However, there is no Rent Insurance policy, per se. Rather, it's available as part of Business Income Coverage, generally contained within a commercial property insurance policy with endorsement providing for "rental value" on its Declaration Page. "[I]f there is no physical damage to the insured property, absent specialized additional coverage (such as Contingent Business Interruption coverage for when another property experiences physical damage or such as Utility Services Interruption coverage), you don't get paid for ‘rental value.’ this insurance coverage is not credit insurance — it is a part of a property insurance policy." Further, "if rent does abate, the premium a tenant paid to cover ‘rental value’ is, ‘down the gutter’ because the tenant's insurance company never has to pay." Tenant's rental value coverage encompasses both the basic rent as well as whatever amounts a tenant would have paid on account of operating expenses, taxes, and the like. In addition, the term includes payment for other items a tenant would have been paying had it not been for damage from an insured peril. That means, by way of example, it covers utility bills the tenant would have been paying.
"Basically, rental value coverage kicks in when the rent stops by reason of the casualty and ends when the rent begins again, the insurance carrier is going to stop paying when the rent ‘should have restarted.’ A tenant's policy, on the other hand, should not penalize the tenant for its landlord's foot dragging. Keep in mind, however, if the rent hasn't abated upon the occurrence of damage, then the tenant has to keep paying rent. So, if the landlord drags its feet or interferes with its tenant's restoration, the tenant may have a ‘delay’ claim against its landlord. In such a case, the tenant's insurance company, upon reimbursing the tenant for the rent, would be able to step into its insured's shoes and take the claim over, remember that if the rent abates and a landlord, insist that the tenant have ‘rental value’ coverage, then [landlord] negotiated for ‘nothing’ because if tenant experiences no loss — the rent stopped — its carrier never has to pay. If the tenant has to obtain and maintain ‘rental value’ coverage (and, as we now know, the rent doesn't abate), its landlord will want to be an ‘Additional Insured’ as to the ‘rental value’ coverage" (Ira Meislik, Ruminations, What Would Rent Insurance Be If There Were Such A Thing? , http://www.retailrealestatelaw.com/archives/1822 [May 12, 2013] ).
"You have failed to provide proof as required by paragraph 46(a) that ‘Tenant shall also maintain rent insurance (for Base Rent and additional rents) for a period of twelve months."
Due to Respondent's failure to cure said alleged breach stated in the Fifteen Day Notice of Default, Petitioner then served a Five-Day Notice of Termination on June 21, 2018, notifying Respondent that tenancy was canceled and terminated as of July 3, 2018. On July 30, 2018, Petitioner commenced the instant holdover proceeding by the service and filing of a Notice of Petition and Petition on the basis that Respondent continued possession of the premises after the July 3, 2018 expiration date of the Five-Day Notice of Termination. Issue joined upon Respondent's Verified Answer served on September 7, 2018 and filed with the Court on September 12, 2018. On October 1, 2018, Respondent served and filed a Motion for Discovery and a Protective Order against Petitioner's subpoena for records pertaining to alleged cure of other non-related alleged breaches, which was denied without prejudice by the court on October 3, 2018. Thereafter, Respondent then served and filed a Motion to Dismiss for failure to state a cause of action on November 5, 2018, which was denied by the court in a decision dated November 16, 2018.
Both parties appeared, and the matter was adjourned on January 15th, 16th, and 24th of 2019. In the interim, Petitioner served and filed the prior underlying Motion for Summary Judgment on March 22, 2019. On March 27, 2019, both parties stipulated to adjournment of the motion to May 2, 2019. The sole issue in controversy was: when was Respondent to acquire rental value coverage pursuant to the lease; Petitioner argued that Respondent was obligated to acquire rental value coverage on December 1, 2016, designated as "Commencement Date", November 2017, or September 28, 2016, the lease signing date, pursuant to clause 40 and clause 46 (a). Whereas, pursuant to same clause 40, Respondent argued that rental value coverage was to be acquired at such time that, "Rent shall commence on the later of (i) March 1, 2017 or (ii) the date that Landlord obtains a temporary certificate of occupancy for the Building for use a general retail store at the Premises and apartments above the Premises ." The issuance of a temporary certificate of occupancy was provided by Petitioner to Respondent in January 2019, therefore payment of rent by Respondent was to begin pursuant to clause 40 as of February 2019. However, in an apparent informal verbal agreement not reduced to writing in any way shape of form, on consent by Petitioner, Respondent began use of demised premises without issuance of temporary certificate of occupancy May 17, 2018. Respondent argued that to avoid Petitioner's threatened litigation, it acquired rental value coverage although knowing that it was not obligated to do so pursuant to the lease. However, Petitioner argued that rental value coverage should have been paid from the date of the lease signing, September 28, 2016, or November 2017 through May 17,2018. It is upon these alternative dates through May 17, 2018, Petitioner argues constitutes this "Lapsed Insurance Coverage Period" which is the incurable breach of lease upon which this Holdover Proceeding is based.
Arguments for the underlying motion shall not be relitigated herein. However, the facts as to statements made at oral argument are significantly material to the instant motion, which unfortunately raises issues as to credibility of Petitioner's counsel. At oral argument on May 2, 2019, this court accorded great latitude and full spectrum of time to both parties to engage in full-throated exhaustive arguments. Court queried both counselors, pursuant to well established law to wit, which party drafted the lease. Petitioner's counsel responded in the affirmative, explicitly elaborating that although appearing counsel's office was not the drafter of lease, it was another of Petitioner's counsel that did indeed draft the lease. However, Petitioner's counsel has now claimed at the August 8, 2019 re-argument, that he does not recollect being asked by this court regarding the drafter of the lease, nor does he recall responding thereto during the May 2, 2019 oral argument on the underlying motion. Yet, Petitioner's counsel disingenuously and illogically argues that he voluntarily and unsolicited stated "all I recall saying was that I did not prepare the lease. I do not recall you asking me that question ." This strains credulity. This same statement is even more incredible where it is totally inconsistent with Petitioner's counsel argument that he does not recall court asking about the drafter of the lease since, as he now aptly argues, said line of inquiry is not in his motion papers nor in opposition papers. It is highly unlikely that Petitioner's counsel made such an unsolicited admission against Petitioner's interest. Rather, there had to be an impetus or triggering query during May 2, 2019 argument to elicit that statement by Petitioner's counsel. Furthermore, the statement made by Petitioner's counsel in and of itself is a logical response to court's query as to the drafter of the lease. What the court finds more troubling as to Petitioner counsel's credibility, is that during August 8, 2019 argument, counsel recanted his initial statement made during May 2, 2019 oral argument, to wit, that he had no "personal knowledge " as to who drafted the lease. Even after the court made itself clear during the August 8, 2019 argument that his lack of recollection is disingenuous, still Petitioner's counsel continued to refute his own previous admissions in his same line of illogical reasoning: to wit, the issue as to drafter of the lease "was not addressed." On May 2, 2019, underlying motion was taken on submission and upon extensive due deliberation, Court's Decision and Order dated, May 24, 2019 Denied aggrieved Petitioner's underlying motion ( 819 Realty Group LLC v. Beast Fitness Evolved LLC, 2019 NY Misc LEXIS 2976 , 2019 NY Slip Op 50907 [U], 63 Misc 3d 1237 [A], 2019 WL 2440328 ).
Tr at 2, lines 1-3; This Court stated, "That's why I had you sworn in, because there is an issue of credibility, because you're stating it never happened, he's stating it did happen. I'm the Judge. I was there. Before we even went into the contract as to what it's about, I asked, as a general rule, who drafted the contract. You [sic, Petitioner's counsel] stated you did not draft the contract. However, you stated that someone, Petitioner's counsel drafted that contract ." tr at 20, lines 2-11.
"In cases of doubt or ambiguity, a contract must be construed most strongly against the party who prepared it, and favorably to a party who had no voice in the selection of its language" ( 67 Wall St. Co. v. Franklin Natl. Bank , 37 NY2d 245, 249 [Ct App 1975] ; see also Jacobson v. Sassower , 66 NY2d 991, 993 [Ct App 1985] ). This Court's general pattern, practice and protocol where contracts are at issue, whether it be the most rudimentary manually drafted pro-se or be it complex attorney work product, the seminal query made to parties is as to the drafter of the contract (tr at 19, line 22 to tr at 20, line 1; tr at 20, lines 13-17; tr at 21, line 24 to tr at 25, line 2).
"At oral argument the Court repeatedly asked both counsels which party prepared the lease and was told it was the Petitioner. In fact, Petitioner's counsel was quick to rejoin that preparation was done by prior, or outside, counsel and not by his office " (affirmation in opposition of respondent's counsel ¶ 4); "Now, at oral arguments, and I believe that this is the reason that you wished both attorneys to be sworn in, at oral argument, it is my distinct recollection that you asked both of us at the bench who was it who prepared the lease. We answered- - I answered, as well as Mr. Meisel, that it was the landlord, and Mr. Meisel, it is my absolute and distinct recollection, said not by his office, but another law office. That's what I heard, and I can hear it in my mind's eye. That is my recollection of what was said " (tr at 10, lines 5-15).
"I do not recall" (tr at 4, line 10 to tr at 5, line 1).
Tr at 4, lines 13-15.
"I didn't have personal knowledge as to who drafted the lease. I didn't have personal knowledge as to who drafted the lease " (tr at 22, lines 22-25). Footnote 4, supra. The Court stated to Petitioner's counsel, " there was no transcript and this is very unfortunate because just the idea that I had to have a reporter and have to have two counselors at law being sworn in for a normal argument is not something that I like to do, and also, it would completely inundate the courthouse if we have to do this with each counselor(s) do you understand?" (tr 20, lines 18-24); "The credibility of someone [sic, counselor] making an argument is first and foremost, because most of the time we don't have reporters for two attorney motions, do you understand?" (tr at 2, lines 1-3).
Tr at 21, lines 19 — 23.
Petitioner's counsel now proceeds by notice of motion to reargue in this instant matter premised upon court's alleged reversible error in having "overlooked", "misapprehended" a fact and "ignored" the law. Petitioner's counsel most heatedly wrote a scathing rebuke and rejoinder of Court's Decision. It argues that this presiding jurist full-well knowing the law, intentionally "ignored " the law to aggrieved Petitioner's detriment, thereby impugning the judicial duty of objectivity and competence of this court. Petitioner's counsel errs in its failure to provide relevant statutory or common law precedent in its argument as to this court's intentional, willful and purposeful choice to "ignore " the law in its argument for leave to reargue. Rather, the CPLR 2221 (d) language statutorily provided is that of unintended characterization of "overlooked" or "misapprehended" fact or law by court. Nowhere to be found in the statute is language that states "ignore" the law ( CPLR 2221 (d) (2) ). At August 8, 2019 oral argument, this court asked Petitioner's counsel to produce the statutory or case law to substantiate where contained within the statute or common law is "ignore " the law for leave to re-argue as follows:
"It is black-letter law in New York, which this court ignored " (affirmation of motion to reargue of petitioner's counsel § C ¶ 15).
Affirmation of motion to reargue of petitioner's counsel § C ¶ 15.
The Court: Well, your motion states more than overlooked or misapprehended. It also stated the jurist, presiding jurist, ignored the law. What case law(s), what statutory language do you have that states ignore the law? Overlooked, misapprehended, absolutely, reargument, for leave to reargue, it's statutorily included. Where did you find the term ignoring the law, because counselor, in your very, in my opinion, scathing rebuts [sic, rebuttal] and rejoinder of the Court's decision, there Is this implicit [sic, implication] that perhaps some judicial ethics had been violated, because ignoring the law is one of the basic things that a Judge is not supposed to do. They can interpret the law. However, they cannot ignore the law. Please point me to where in your research have you found either ignoring the law in statute form or case law, please because you did not include that in your papers. your leave to reargue in chief, you [sic, Petitioner's counsel] stated specifically, She ignored the law. That's quite scathing. That is a violation of the adjudicative responsibilities of a Judge that goes to judicial ethics.
Tr at 24, line 12 to tr at 25, lines 1-5.
Tr at 25, lines 16-20; 22 NYCRR 100.3(A) (B[1] — [4] ).
It may unfortunately be deduced that aggrieved Petitioner's counsel in its overly impassioned argument makes a spurious, specious argument wholly unsupported by statutory or precedential common law. More so troubling, Petitioner counsel's argument suggests this presiding jurist may have violated its judicial ethics in its "Adjudicative Responsibilities A judge shall be faithful to the law and maintain professional competence in it ." Notwithstanding all the foregoing, this court most certainly opines that such a seemingly personally tinged unprincipled argument unsupported by fact or law was quite improbably the intent of Petitioner's counsel, of which Petitioner's counsel did indeed state on August 8, 2019 argument that it was not its intent to so do. Rather, but a mere in-artfully drafted flawed argument by an impassioned aggrieved Petitioner's counsel to remedy its errors and omissions in its underlying motion. Petitioner's counsel apologized to the court, retracted said argument as to "ignored the law " and asked that it be stricken from its papers.
Petitioner's counsel states, "I apologize ," (tr at 25, line 21). "Maybe sometimes I go too far " (tr at 28, lines 11-12).
22 NYCRR 100.3(A) —(B[1] ).
See n 3, supra .
Tr at 25, lines 21-22; tr at 26, lines 4-17.
Consequently, Petitioner's counsel now argues pursuant to CPLR 2221 (d) that the fact "overlooked" and "misapprehended" by court in its Decision on the underlying motion was a "Joint Preparation Clause" 64 (c) contained within the lease. Petitioner's counsel implicitly argues that although it did not explicitly argue same during May 2, 2019 argument for the underlying motion, by virtue of the lease being merely physically attached to its motion papers it was not necessary for Petitioner's counsel in its argument in chief to convey this fact to the court. Rather, Petitioner's counsel argues by the mere physical attachment of the lease to the motion papers it was incumbent on the court to have known or should have known the existence of clause 64 (c) because the court had physical possession of the lease at all times as part of the underlying motion, therefore, "the lease speaks for itself " ; and further that the court should not have made its Decision in consideration of any legal argument not explicitly argued by Petitioner or Respondent.
"This Lease shall be deemed to have been jointly prepared by both of the parties hereto, and any ambiguities or uncertainties herein shall not be construed for or against either of them. " Lease Clause 64 (c).
"there is a joint preparation clause in the lease, and that lease was annexed to our motion papers" (tr at 7, lines 11-12).
"Even if it [sic, drafter of lease] was asked, the lease speaks for itself insofar the existence of that joint preparation clause " (tr at 5, lines 2-4).
Petitioner's counsel argued, "I believe that your Honor was under the guise of contract interpretation, adding or distorting terms, that it [sic, drafter of the lease] was not raised in the motion papers neither party raised the joint preparation clause in the motion papers " (tr at 8, lines 13-21).
DISCUSSION
LEAVE TO REARGUE: CPLR 2221(d)
Petitioner seeks to persuade court that "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion " is reversible error ( CPLR 2221 [d] ; Matter of Miness v. Deegan , 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399 ; Bolos v. Staten Island Hosp. , 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995] ; Schneider v. Solowey , 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988] ). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial ( Application of Central States Paper & Bag Co., Inc. , 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 AD 841, 134 NYS 2d 271 [1st Dept 1954] ; Rubin v. Dondysh , 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990] ). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue "shall be made, on notice, to the judge who signed the order " ( Alta Apartments LLC v. Wainwright, 4 Misc 3d 1009 [A], 791 N.Y.S.2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004] ).
Petitioner's counsel sets forth an impassioned rejoinder and rebuke of Court's Decision based upon its unsupported untenable assertion that Court overlooked or misapprehended a Joint Preparation Clause 64 (c) contained within the lease at issue. Although Petitioner's counsel full-well knows that it failed in the first instance to assert clause 64 (c) neither at oral argument nor in its submitted papers in the underlying motion, it now attempts to rectify its previous failure and omission by shifting its burden for zealous advocacy to the court. A Motion to reargue is not an aggrieved party's second bite of the apple to present new or divergent arguments from its original failed arguments ( Giovanniello v. Carolina Wholesale Off. Mach. Co., Inc. , 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006] ; Gellert & Rodner v. Gem Community Mgt., Inc. , 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005] ; Pryor v. Commonwealth Land Tit. Ins. Co. , 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005] ; Amato v. Lord & Taylor, Inc. , 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004] ; Frisenda v. X Large Enters. , 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001] ; Foley v. Roche , 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979] ), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court ( William P. Pahl Equip. Corp. v. Kassis , 182 AD2d 22, 588 NYS 2d 8 [1st Dept 1992] ; Pro Brokerage v. Home Ins. Co. , 99 AD2d 971, 472 NYS 2d 661 [1st Dept 1984] ). Petitioner's counsel erroneously argues, in sum and substance, its burden is to be shifted upon the presiding jurist to investigate for any and all facts within the four corners of any and all relevant contracts in controversy to ferret out and parse each fact as to relevancy and materiality. If this were indeed the duty of jurists, the wheels of our overburdened justice system would grind to a proverbial screeching halt. Petitioner counsel's argument fails in this regard. It is rather the duty of Petitioner's counsel to zealously advocate for its client to present any and all facts to the jurist it deems relevant and material for the relief prayed for from presiding jurist. Jurists cannot "overlook" facts that are not argued by the adversarial parties. Jurists cannot "misapprehend" facts that are not argued by the parties. Jurists are but blank canvases upon which the parties provide the facts as to the issue in controversy, to paint their respective parts of the picture, upon which the jurist completes the picture as he or she applies any and all relevant law at their ken as they deem relevant in their legal reasoning to the ultimate completion of the picture, to wit, their decision. It is the zealous competent duty of all parties' counselors to present the relevant and material facts to the jurist, make its respectful law-based arguments upon which it desires the jurist to rely upon. Petitioner's counsel implicitly argued that court is constrained to limit its legally reasoned decision making to parties' arguments and rebuttals. Not so. On the contrary, the court is not so constrained to merely the cited law and arguments proffered by the parties. Rather, a court is duty-bound in the interest of justice, fairness and judicial economy to make a fully extensively briefed decision regardless of parties' failure to so do. Petitioner counsel's argument as to said constraint on the judiciary defies the preeminent basic principles of common law jurisprudence from the King's Bench upon which forms the foundation of our American Justice System.
Notwithstanding that this court granted all parties ample opportunity to present their relied upon relevant facts and attendant legal arguments, Petitioner's counsel failed to present clause 64 (c) in its moving papers, its oral argument nor its reply papers for its underlying motion. Accordingly, Petitioner counsel's argument fails in the second prong of CPLR 2221 (d) (2), in that leave to reargue "shall not include any matters of fact not offered on the prior motion ". Clearly, this is not the case here. Notwithstanding Petitioner counsel's specious attempt through obfuscation that in some way shape or form that clause 64(c) was at all times a present fact since contained in the physically appended lease such that this court knew or should have known of clause 64 (c), it is indeed a new matter of fact not offered on the prior motion. CPLR 2221(d) (2). Rather, Petitioner's counsel now argues in sum and substance that since 64 (c) was contained within the lease that jurist was duty-bound to have read the entirety of the 34-page, 72-clause lease and rider to find that specific fact as to the existence of clause 64(c) and should have considered same in its Decision. On the contrary, the first introduction of clause 64(c) in this instant motion renders it a new fact being proffered for the first time by the aggrieved Petitioner's counsel and as such is beyond the statutory scope of Petitioner counsel's motion to reargue. As a consequence of this newly introduced fact, Petitioner's counsel errs in proceeding by notice of motion to reargue in contravention of CPLR 2221 (d) (2).
LEAVE TO RENEW: CPLR 2221(e)
Petitioner counsel's spurious arguments for leave to reargue, such that this court overlooked or misapprehended facts or law in its motion to reargue are meant to exonerate its responsibility for zealous advocacy to shift its failures, errors and omissions to the court. It comes with unclean hands in request of court to invoke its equitable discretion. It is clear from all papers and oral arguments, Petitioner's counsel was fully aware that it labeled its motion as one to reargue as opposed to renew as an intentional willful act. Mislabeling is more so characterized as an inadvertent act. It was intentionally labeled as such to shift the Petitioner counsel's failures, errors and omissions to court in overlooking and misapprehending facts and ignoring the law. Mislabeling carries rather and inadvertent connotation. Not so here. The labeling was intentional and willful. Therefore, this court declines to exercise its equitable discretion to relabel Petitioner counsel's motion to reargue to a motion to renew and rather, This Court sua sponte deliberates as leave to renew.
Petitioner counsel's argument that its motion to reargue may have been erroneously mislabeled is unpersuasive to invoke court's equitable discretion to relabel same as a motion to renew since motion to reargue is based upon an untenable false narrative by Petitioner's counsel that the fact as to existence of 64(c) was not a new fact but was rather a fact that court chose to overlook or misapprehend and "ignored" the law, even though at oral argument when queried by court to provide statutory or case law, Petitioner's counsel made application to strike "ignored " from its Affirmation Paragraph C, 15 (tr at 26, lines 2-10; see Sandra Requa v. Apple Inc. , 2013 NY Misc LEXIS 7111, 2013 WL 9839338 ; see also Turkel v. I. M. I. Warp Knits, Inc. , 50 AD2d 543, 375 NYS 2d 333, 1975 NY App Div LEXIS 12275 ).
Sandra Requa v. Apple Inc. , 2013 NY Misc LEXIS 7111, 2013 WL 9839338 ; see also Turkel v. I. M. I. Warp Knits, Inc. , 50 AD2d 543, 375 NYS 2d 333, 1975 NY App Div LEXIS 12275.
Although retracted (tr at 26, lines 2-10).
CPLR 2221 (e) (2), requires leave to renew, "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination ." Here, court finds it necessary to repeat its findings, supra for this branch of its Decision: Petitioner's counsel continually inexplicably insists on its claim that 64 (c) is not a new fact since it was at all times contained within the physically appended lease to its motion papers. Therefore, implicitly arguing that court was duty-bound to read the entirety of the 34-page, 72-clause lease and rider to find clause 64 (c) and should have considered same in its Decision. On the contrary, it was Petitioner's counsel that was duty-bound to have read the entirety of the 34-page, 72-clause lease and rider to find clause 64 (c) before May 2, 2019 argument on the underlying motion. When this court asked the parties as to who drafted the lease, Petitioner's counsel at that time was to specifically, explicitly and unequivocally state as to the existence of clause 64 (c). It failed to do so. Contradictorily, Petitioner's counsel argues, this court should have considered 64 (c) in its Decision although not a fact proffered; yet it also argues that this court should not have considered 64 (c) in its Decision since court is constrained to not apply any law-based reasoning not proffered by either party. Petitioner's counsel after being sworn in on August 8, 2019 oral argument stated that he could not recall court's query as to drafter of the lease but would defer to Court's recollection. During oral argument on May 2, 2019, court explicitly asked of both counselors as to the drafter of the lease, an obvious triggering impetus for Petitioner's counsel to disclose clause 64 (c) at that time. In Petitioner's failing to do so, renders clause 64 (c) a new fact being proffered for the first time not previously offered on the prior underlying motion by the aggrieved Petitioner's counsel, in compliance with the first prong of CPLR 2221 (e) (2). In addition, CPLR 2221 (e) (3) requires that leave to renew "shall contain reasonable justification for the failure to present such facts on the prior motion ." Consistent with its flawed legal reasoning in its motion to reargue, Petitioner's counsel erroneously relies on its unsupported tenet in shifting its burden to the court thereby ostensibly obviating any error or omission on its own part, as it still maintained that court should have known about clause 64 (c) because of physical attachment to its papers. Petitioner counsel's justification by implication is that it was court's error in failing to "present" nor consider clause 64 (c) in its prior Decision. "The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application " (Matter of Miness v. Deegan 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399, citing Winograd v. Neiman Marcus Group , 11 AD3d 455, 782 NYS 2d 753 [2d Dept 2004] ; Seltzer v. City of New York , 288 AD2d 207, 732 NYS 2d 364 [2d Dept 2001] ; Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle , 271 AD2d 636, 706 NYS 2d 724 [2d Dept 2000] ). The Second Department has also held, "a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion " or if the moving party offers a reasonable excuse for not having presented those facts ( Granato v. Waldbaum's, Inc. , 289 AD2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962 ; see also Doviak v. Finkelstein & Partners, LLP. , 90 AD3d 696, at 700-01 [2d Dept 2011] ; Schenectady Steel Co. v. Meyer Contracting Corp. , 73 AD3d 1013, at 1015 [2d Dept 2010] ; Smith v. State , 71 AD3d 866, at 867-68 [2d Dept 2010] ; Surdio v. Levittown Public School District , 41 AD3d 486, at 486-87 [2d Dept 2007] ). Petitioner's counsel here fails to provide any viable justification. When queried by court for justification as to why it did not provide clause 64 (c) at the May 2, 2019 argument on the underlying motion, its response was: "I don't have a good answer for that " , in contravention to CPLR 2221 (e) (3). Petitioner's counsel at all times had the actual lease, the basis of its argument in its holdover proceeding for breach of lease contract and also within its ken, the existence of clause 64 (c) Joint Preparation Clause. Consequently, clause 64 (c) is a new fact not offered on the prior underlying motion pursuant to CPLR 2221 (e) (2) although it was always readily available to Petitioner's counsel during the prior underlying motion. Furthermore, the introduction of the new fact of clause 64 (c) must also be deemed, as statutorily mandated by CPLR 2221 (e) (2) to change the prior denial of the prior underlying motion. Here it does not.
Tr at 4, line 10 to tr 5, line 1.
Respondent's counsel graciously attempts justification for Petitioner counsel's error and omission: "While we may sympathize with counsel for not being able to marshal and bring to the Court's attention all of the turgid language in a document not of his authorship, it is an unfortunate truth that lawyers are accountable for all the language in documents they litigate " (affirmation of respondent's counsel at ¶ 8).
Tr at 22, lines 9-10.
Consequently, the introduction of the existence of clause 64 (c) is deemed a new fact being offered for the first time, was not offered on the prior underlying motion, with no reasonable justification for said failure to offer this new fact, and the introduction of the new fact of clause 64 (c) does not change the prior underlying motion's denial.
Pursuant to the attendant facts and legal reasoning supra Petitioner's prayed for Relief for leave to reargue and This Court's sua sponte leave to renew are DENIED.
The foregoing constitutes the opinion, decision, and order of This Honorable Court.