Opinion
Index No.: 300202/2018
09-09-2019
ANNETTE HERSTIC, Plaintiff, v. MITCHEL I. HERSTIC and DAVID A. KAPELMAN, Defendants.
Mtn. Seq. # 3
DECISION and ORDER
PRESENT: Hon. Lucindo Suarez
The issue in Plaintiff's motion is whether the court should grant its application for leave to re-argue. The court finds that Plaintiff's motion is untimely, and it did not present a sufficient basis to warrant altering its prior decision and order.
A motion for leave to re-argue pursuant to CPLR §2221(d) is addressed to the sound discretion of the court and may be granted only upon a showing "that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision." William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 588 N.Y.S.2d 8 (1st Dep't 1992). Additionally, a motion to re-argue shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. See CPLR §2221(d)(3); see also Selletti v. Liotti, 45 A.D.3d 668, 845 N.Y.S.2d 816 (2d Dep't 2007).
Here, Plaintiff argued that the court overlooked or misapprehended the fact that in her prior opposition papers she purportedly affirmed that she timely served the verified complaint upon Defendants Mitchel I. Herstic and David A. Kapelman (collectively "Defendants") within the time allotted under CPLR §3012(b). Further, Plaintiff contended that she was not required to file her verified complaint with the Bronx County Clerk's Office prior to serving same because she commenced this action via summons with notice. Lastly, she argued that her opposition papers to the underlying dismissal motion were timely, and that she was not required to cross-move for a default judgment.
In opposition, Defendants argued that this court should not entertain the instant motion because it was untimely. Further, Defendants maintained that they were never served with the verified complaint nor was there a verified complaint filed with the Bronx County Clerk's Office until June 2019. Moreover, they argued that this court should have not considered Plaintiff's opposition papers to the underlying dismissal motion because they were untimely served. Lastly, Defendants contended because Plaintiff failed to cross-move for a default judgment it further evinced that she failed to file a verified complaint.
The court finds that the instant application is untimely as Plaintiff failed to move for re-argument within the time period provided in CPLR §2221(d)(3). Even setting aside the untimeliness of Plaintiff's application, the court finds her arguments unavailing. The court finds that service of a verified complaint, which was not previously filed with the Bronx County Clerk's Office does not comply with the service requirements of CPLR §3012(b). At best, what Plaintiff served on Defendants was a proposed verified complaint. The court cannot accept service of a pleading, which at the time of service it was not filed with Bronx County Clerk's Office. See Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 946 N.E.2d 717, 921 N.Y.S.2d 619 (2011).
Accordingly, it is
ORDERED, that Plaintiff's motion to re-argue is denied.
This constitutes the decision and order of the court. Dated: September 9, 2019
/s/_________
Lucindo Suarez, J.S.C.