Opinion
Index No. 113591/2005
09-19-2008
DONG WAN JOO and ON KYUNG JOO, Plaintiffs, v. NICOLE M. CHO, individually and doing business as LOTTE MORTGAGE, BACK CHUL KIM, SOONA LEE and AMERICAN GATEWAY ENERGY, LLC, Defendants.
DECISION & ORDER
SHIRLEY WERNER KORNREICH, J.
Defendant American Gateway Energy LLC (AGE), moves to reargue a prior order of this court, dated April 9, 2008, which denied AGE's motion for summary judgment dismissing the fifth and sixth causes of action to set aside a fraudulent conveyance. The ground for the motion is that a notice of pendency filed on January 27, 2004, in an action entitled Dyche v. Kim, Sup. Ct. N.Y. Co. Index No. 101296/04 (Prior Action), precludes plaintiffs from setting aside the conveyance to AGE because plaintiffs' mortgage was recorded on October 14, 2004, a later date.
AGE's motion must be denied because it made the same argument on the original motion and has not shown that the court overlooked any fact or controlling principle of law. Reargument should be granted where the movant demonstrates that the court "misconstrued relevant facts or misapplied governing law." DeSoignies v. Cornasesk House Tenants' Corp., 21 A.D.3d 715, 718 (1st Dept. 2005). It should not be a vehicle to rehash arguments already made or to advance new arguments or present different evidence that was available at the time of the original application. James v. Nestor, 120 A.D.2d 442 (1st Dept. 1986);Foley v. Roche, 68 A.D.2d 558 (1st Dept. 1979). AGE has not met this standard.
In addition, AGE now argues that the $25,000 defendant Dyche paid to defendant Kim for the alleged fraudulent conveyance was a settlement in the Prior Action, which resulted alter Justice Marcy S. Friedman granted a permanent injunction. There is no proof in the parties' submissions that there was a settlement or a permanent injunction in the Prior Action. The purported record of the settlement is improperly supplied by AGE for the first time on this motion, which isreason enough to deny reargument. In addition, it ie not a settlement. It is an affidavit by defendant Kim swearing that he dismissed his attorney in yet another action entitled Dyche v. Kim, bearing Supreme Court Index No. 1764/2003, which is not the same index number as the Prior Action, Neither the papers submitted nor computerized records of this Court or the New York County Clerk reflect a settlement or an order by Justice Friedman granting a permanent injunction in the Prior Action. The computerized records reflect that the Prior Action was discontinued at the time of trial after Justice Friedman had granted a motion for a preliminary injunction.
Hence, summary judgment for AGE would be inappropriate because there Sevidence that the Prior Action did not result in a determination that binds AGE pursuant to CPLR __ Accordingly, it is
ORDERED that the motion for reargument is denied for the reasons stated in this decision and the Prior Order.
ENTER:
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J.S.C.