Opinion
INDEX NO. 155506/2016
01-17-2019
WILFRIED MATZ and HELGA WOSTL, as Co-Administrators of the ESTATE OF ELLEN MATZ, Plaintiffs, v. SOL KLEIN P.A., INC. and BAUER BROKERAGE INC., Defendants.
NYSCEF DOC. NO. 86 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion to/for REARGUMENT/RECONSIDERATION. Upon the foregoing documents, it is ordered that the motion and cross motion are decided as follows.
Plaintiffs Wilfried Matz and Helga Wostl, as Co-Administrators of the Estate of Ellen Matz, commenced this action against defendants Aboulafia Law Firm, LLC ("the Aboulafia Firm"), Matthew Aboulafia ("Aboulafia"), Sol Klein, P.A., Inc. ("Klein Inc."), Sol Klein ("Klein"), and Bauer Brokerage Inc. ("Bauer") seeking damages for, inter alia, professional negligence arising from a property damage loss. By order dated October 10, 2017 ("the initial order"), this Court granted, in part, a motion (mot. seq. 001) by the Aboulafia Firm, Aboulafia, Klein Inc., and Klein ("the initial motion") to dismiss the complaint insofar as asserted against them. Doc. 39. The initial order dismissed the complaint as against Aboulafia, the Aboulafia Firm, and Klein. Defendants now move, pursuant to CPLR 2221, for reargument of that branch of the initial motion seeking dismissal of the action as against Klein Inc., along with such other relief as this Court deems proper. Doc. 37. Plaintiffs oppose the motion and cross-move, pursuant to CPLR 3025(b), to amend the complaint to add a claim for breach of contract as against Klein Inc. Docs. 48-49, 52. After oral argument, and after a review of the parties' papers and the relevant statutes and case law, the motion and cross motion are decided as follows.
Unless otherwise noted, all references are to the documents filed with NYSCEF in connection with this matter.
The facts of this matter are set forth in detail in the initial order of this court dated October 10, 2017. Any additional relevant facts are set forth below.
KLEIN INC.'s MOTION FOR REARGUMENT
As noted above, the instant motion and cross motion pertain only to the claims against Klein Inc. In its initial order, this Court, in refusing to dismiss the claims against Klein Inc., stated that:
Construing the complaint in a light most favorable to plaintiff[s], it sets forth a cause of action in negligence as against Klein Inc. based on its failure to properly adjust their claim. Specifically, as noted above, plaintiffs allege that Klein Inc. failed to inform Aboulafia and the Aboulafia Firm about the existence of the Technology Policy, despite the fact that they knew about the same. Klein Inc. asserts, in effect, that its retainer agreement constitutes "documentary evidence" precluding the claims against it because it only required the company to adjust the claim and not to notify the Aboulafia Firm of any course of action it should take. The agreement provides, inter alia, that it is "valid only if both it and [the] attached notice of cancellation are written in the same language as that principally used in the oral negotiations and presentation." Doc. 28. Since the agreement does not contain any details about any oral negotiations or presentation, it clearly cannot be considered "documentary evidence" pursuant to CPLR 3211(a)(1). Nor does Klein's affidavit in support of the motion constitute "documentary evidence." See, e.g., J.A. Lee Electric, Inc. v City of New York, 119 AD3d 652 (2d Dept 2014); Flowers v 73rd Townhouse, LLC, 99 AD3d 431 (1st Dept 2012).Doc. 39, at 8-9.
Klein Inc. moves for reargument of the initial motion, asserting that this Court erred in refusing to dismiss the complaint against him based on CPLR 3211(a)(1) (documentary evidence) and (a)(7) (failure to state a cause of action).
A motion for reargument pursuant to CPLR 2221(d) is designed to afford a party an opportunity to demonstrate that, in issuing a prior order, the court overlooked relevant facts or that it misapplied a controlling principle of law. See Foley v Roche, 68 AD2d 558, 567 (1st Dept 1979). "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." William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1st Dept 1992) (citations omitted). Thus, the motion is not to be used as a vehicle for rehashing what was already argued or for raising new questions. See Simpson v Loehmann, 21 NY2d 990, 990 (1968).
Klein Inc. argues that it had no duty to advise Aboulafia or the Aboulafia Firm about the claim submitted to TIC, which is what it argued in the initial motion. Doc. 9, at par. 16. Further, it sets forth no authority for this argument. Moreover, as this Court stated in the initial order, Klein Inc. did not submit documentary evidence warranting dismissal of the negligence claim against it. Thus, Klein Inc.'s motion for reargument is denied.
PLAINTIFFS' CROSS MOTION TO AMEND THE COMPLAINT
Plaintiffs cross motion to amend the complaint to add a cause of action for breach of contract against Klein Inc. is granted.
Pursuant to CPLR 3025(b), a party may amend its pleading at any time by leave of court, and leave shall be freely given upon such terms as may be just. It is within the court's discretion whether to permit a party to amend its complaint. See Peach Parking Corp. v 345 W. 40th Street, LLC, 43 AD3d 82 (1st Dept 2007). On a motion for leave to amend, a plaintiff need not establish the merit of its proposed new allegations (see Lucindo v Mancuso, 49 AD3d 220, 227 [1st Dept 2008]), but must show that the proffered amendment is not palpably insufficient and not clearly devoid of merit. See Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 366 (1st Dept 2007); MBIA Ins. Corp. v Greys tone & Co., Inc., 74 AD3d 499 (1st Dept 2010). A court should also consider whether any prejudice would result from allowing an amendment. See Lanpoint v Savvas Cab Corp., Inc., 244 AD2d 208, 2090-210 (1st Dept 1997).
Plaintiffs' proposed amendment is neither palpably insufficient nor clearly devoid of merit. They allege that they were damaged by Klein Inc.'s breach of their agreement with Klein Inc. and the latter does not dispute that the contract existed. Although Klein Inc. maintains that any breach of the agreement was not the proximate cause of plaintiffs' damages, that is not an issue to be determined in connection with the instant application. Moreover, Klein Inc. does not even assert, much less establish, that any prejudice would result from the amendment.
Although defendants assert that the cross motion should be denied based on facial deficiencies in the proposed amended complaint (Doc. 63, at par. 6), those deficiencies were remedied in a corrected version of the proposed amended complaint annexed to plaintiffs' affirmation in further support of the cross motion. Doc. 67.
Given the foregoing conclusions, it is not necessary to address the parties' other contentions.
Therefore, in light of the foregoing, it is hereby:
ORDERED that defendant's motion is denied; and it is further
ORDERED that plaintiffs cross-motion for leave to amend the complaint is granted, and the amended complaint in the proposed form annexed to the cross-motion (Doc. 67) shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further
ORDERED that defendants shall serve an answer to the amended complaint or otherwise respond within 20 days from the date of said service; and it is further
ORDERED that the parties are directed to appear for a preliminary conference in Room 280 at 80 Centre Street on May 21, 2019 at 2:15 p.m.; and it is further
ORDERED that this constitutes the decision and order of the court. 1/17/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.