Leonard v. Carousel Carriers, LLS

Full title: LISA LEONARD, Plaintiff, v. CAROUSEL CARRIERS, LLS, RESERVOIR UNITED…

Court: Supreme Court, Ulster County

Date published: Nov 3, 2021

2021 N.Y. Slip Op. 33276 (N.Y. Sup. Ct. 2021)

Opinion

Index EF2018-3350

11-03-2021

LISA LEONARD, Plaintiff, v. CAROUSEL CARRIERS, LLS, RESERVOIR UNITED METHODIST CHURCH and HOWARD COOK, Defendants.

RUSK WADLIN HEPPNER & MARTUSCELLO, LLP Attorneys for the Plaintiff By: Nikolas S. Tamburello, Esq. MAYNARD, O'CONNOR, SMITY & CATALINOTTO, LLP Attorneys for Defendant Reservoir United Methodist Church SMITH, MAZURE, DIRECTOR, WILKINS, YOUNG, & YAGERMAN, PC Attorneys for Defendants Carousel Carriers, LLC and Howard Cook By: Howard K. Fishman, Esq.

JAMES P. GILPATRIC, J.S.C.

Unpublished Opinion

RUSK WADLIN HEPPNER & MARTUSCELLO, LLP Attorneys for the Plaintiff By: Nikolas S. Tamburello, Esq.

MAYNARD, O'CONNOR, SMITY & CATALINOTTO, LLP Attorneys for Defendant Reservoir United Methodist Church

SMITH, MAZURE, DIRECTOR, WILKINS, YOUNG, & YAGERMAN, PC Attorneys for Defendants Carousel Carriers, LLC and Howard Cook By: Howard K. Fishman, Esq.

DECISION AND ORDER

JAMES P. GILPATRIC, J.S.C.

The co-defendant Reservoir United Methodist Church moves (hereinafter "Reservoir"), pursuant to CPLR § 2221(a), for leave to reargue this Court's Amended Decision and Order, dated June 17, 2021, to the extent that the underlying determination be amended to dismiss all cross-claims. Here, said co-defendant asserts that this Court failed to consider the affirmation in opposition submitted by co-defendants Carousel and Cook by Stacy J. Ury, dated April 30, 2020, with exhibits and, attached said document to its motion. Co-defendants Carousel Carriers, LLC (hereinafter "Carousel") and Howard T. Cook (hereinafter "Cook") oppose co-defendant Reservoir's motion to dismiss all cross-claims but also move to reargue the this Court's Amended Decision and Order, dated June 17, 2021 for failure to consider the aforementioned affirmation of Stacy J. Ury. Additionally, the plaintiff cross-moves to reargue this Court's Amended Decision and Order, dated June 17, 2021.

This Court, by Amended Decision and Order, dated June 17, 2021, granted co-defendant Reservoir's summary judgment motion for dismissal of plaintiff s complaint as against it and denied the co-defendant Reservoir's motion to dismiss of cross-claims asserted against them.

A motion to reargue is addressed to the sound discretion of the Court. It does not rely on new proof; rather its purpose is to provide the movant with an opportunity to convince the Court that it overlooked or misunderstood a factual or legal issue (In re Oswald, 138 A.D.3d 1343 [3rdDept]; Pro Brokerage Inc. v. Home Ins. Co., 99 A.D.2d 971 [1^st Dept 1984], appeal dismissed 64 N.Y.2d 646 [1984]). However, it is not designed to allow a party the opportunity to argue a new theory of law not previously advanced by it (Frisenda v X Large Enterprise Inc., 280 A.D.2d 514, 515 [2^nd Dept 2001]).

Here, it is argued by all parties that the Court both overlooked and/or misapprehended the facts and law for the issues presented on the underlying motion. It is alleged that the affirmation of Stacy J. Ury was not considered as it does not appear in papers considered. As such, upon review of the submissions the Court grants reargument as to this Court's review of the •affirmation in opposition of Stacy J. Ury only. Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted, (see Pahl Equipment Corp. V. Kassis, 182 A.D.2d 22 [1^st Dept. 1992]).

Therefore, after reviewing Ms. Ury's affirmation in oppostion, the Court is not persuaded that it overlooked or misunderstood any factual or legal issue before it. As such, after granting the motions for reargument, the Court stands by the findings of its June 17, 2021 Decision and Order. The Court's thorough review of the aforesaid affirmation does not change this Court's prior decision in that it has not demonstrated its entitlement to summary judgment for the dismissal of cross-claims as against them. Any remaining arguments have either been considered and/or determined to be without merit. Accordingly, it is

ORDERED that the motions to reargue this Court's Decision and Order, dated June 17, 2021, are granted, and it is further

ORDERED that the part of co-defendant Reservoir's summary judgment motion for dismissal of plaintiff s complaint as against it is granted, and it is further

ORDERED that the part of co-defendant Reservoir's motion seeking dismissal of cross-claims is denied.

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry and service.

SO ORDERED!