Moran v. Delacruz-Espinal

Full title: HOLGER MORAN, MARIELA GUAMAN, Plaintiff, v. JAIME DELACRUZ-ESPINAL…

Court: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART IAS MOTION 22

Date published: Mar 12, 2019

2019 N.Y. Slip Op. 30616 (N.Y. Sup. Ct. 2019)

Opinion

INDEX NO. 151198/2017

03-12-2019

HOLGER MORAN, MARIELA GUAMAN, Plaintiff, v. JAIME DELACRUZ-ESPINAL, GODDARD RIVERSIDE COMMUNITY CENTER, SHEMIR DONALDSON-PRENTISS, ABC CORP I-X, JOHN DOE I-X, XYZ EMPLOYER I-X, JAIME DELACRUZ-ESPINAL, GODDARD RIVERSIDE COMMUNITY CENTER, SHEMIR DONALDSON-PRENTISS, ABC CORP I-X, JOHN DOE I-X Defendant.

HON. ADAM SILVERA Justice

NYSCEF DOC. NO. 60 PRESENT: HON. ADAM SILVERA Justice MOTION DATE 11/26/2018 MOTION SEQ. NO. 003

DECISION AND ORDER

The following e-filed documents, listed by NYSCEF document number (Motion 003) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for RENEWAL.

Upon the foregoing documents, it is ordered that plaintiffs Holger Morgan and Mariela Guaman's motion is granted. Here, plaintiffs seek to renew two prior motions, made by defendants Goddard Riverside Community Center and Shemir Donaldson-Prentiss (hereinafter referred to as the "Goddard Riverside Defendants"), and defendant Jaime R. Delacruz-Espinal, both of which sought to dismiss this action. In a prior decision dated August 1, 2018 (hereinafter referred to as the "Prior Decision"), the Court granted both motions solely on the grounds that plaintiff failed to timely commence this action. Plaintiffs now move to renew the Prior Decision. The Goddard Riverside Defendants oppose. Defendant Delacruz-Espinal fails to oppose.

Plaintiffs argue that this Court misapprehended both the law and the facts, as this action was timely commenced within the statute of limitations. Plaintiffs contend that the Court misapprehended the date in which the statute of limitations ran, as such date fell on a weekend. Plaintiffs further contend that the Court overlooked the law regarding filing papers when the deadline falls on a weekend. In opposition, the Goddard Riverside Defendants argue that plaintiffs' instant motion to renew must be denied as it is actually a motion to reargue which was not filed within 30 days of service of the notice of entry as required by CPLR §2221(d)(3), that plaintiffs failed to comply with CPLR §2221, that plaintiffs sought only to renew defendant Delacruz-Espinal's motion and not the Goddard Riverside Defendants' motion, and that plaintiffs moving papers are defective as plaintiffs failed to submit a full copy of the papers filed in the subsequent motions. The Goddard Riverside Defendants further argue that plaintiffs fail to allege any new facts which were unavailable at the time the parties filed the original motions.

Preliminarily, the Court rejects the Goddard Riverside Defendants' argument that plaintiffs' instant motion must be denied on the basis that plaintiffs failed to submit any of the papers filed on the Goddard Riverside Defendants' prior motion. In support of their argument, the Goddard Riverside Defendants cite CPLR §2214. However, the Court notes that the Supreme Court, New York County implemented electronic filing of documents in 2011, 8 years ago. It is common knowledge amongst attorneys practicing in the Supreme Court, New York County that actions are now subject to mandatory electronic filing with some exceptions, none of which apply herein. Here, it is undisputed that this action is electronically filed. In fact, the Goddard Riverside Defendants voluntarily agreed to electronic filing rather than opting out with cause. Thus, all the papers filed in the prior motions are easily accessible and available to the Court for review. Furthermore, CPLR §2214 specifically states that "in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court". In the instant motion to renew, plaintiffs indeed make reference to the Goddard Riverside Defendants' prior motion. Thus, the Goddard Riverside Defendants' argument regarding submission of the prior papers fails.

The Goddard Riverside Defendants also argue that plaintiffs' motion is, in fact, a motion to reargue rather than a motion to renew and is, thus, improperly identified and does not comply with CPLR §2221. According to the Goddard Riverside Defendants, plaintiffs' current motion raises no new facts as required by CPLR §2221 such that the motion should be denied. The Goddard Riverside Defendants further argue that, as plaintiffs' motion is a motion to reargue, plaintiffs failed to timely file this motion to reargue.

CPLR §2221(d)(3) states that a motion to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." Here, notice of entry was served by the Goddard Riverside Defendants on August 3, 2018 by electronic filing. It is undisputed that plaintiffs' instant motion was filed on September 6, 2018, on the 34^th day following service of the notice of entry by electronic filing. However, even if the Court were to consider plaintiffs' motion as a motion to reargue, the Appellate Division, First Department has held that "although plaintiff's motion for reargument was technically untimely pursuant to CPLR 2221(d), it was not an improvident exercise of the court's discretion to have reconsidered its prior ruling." Garcia v Jesuits of Fordham, Inc., 6 AD3d 163, 165 (1^st Dep't 2004). Moreover, the Court of Appeals has explicitly held that "regardless of statutory time limits concerning motions to reargue, every court retains continuing jurisdiction to reconsider its prior interlocutory orders". Liss v Trans. Auto Sys., Inc., 68 NY2d 15, 20 (1986). As such, the Goddard Riverside Defendants' argument regarding the timeliness of plaintiffs' instant motion fails.

Here, it is undisputed that plaintiffs filed the instant motion a mere 4 days following the expiration of the 30 day time limitation set forth in CPLR§2221(d)(3). It is further undisputed, as established by plaintiffs' counsel's opposition papers in both prior motions, that plaintiffs' counsel has suffered various personal hardships. Here, in the interests of justice, the Court sua sponte recalls and vacates the Prior Decision as it is clear that the Court overlooked the fact that the statute of limitations ran on a Sunday. General Construction Law §25-a states that "[w]hen any period of time, computed from a certain day, within which...an act is...required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day". Thus, plaintiffs properly and timely commenced this action on the Monday following. CPLR §2221(d)(2) permits a party to move for leave to reargue a decision upon a showing that the court misapprehended the law in rendering its initial decision. "A motion for leave to reargue pursuant to CPLR §2221 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 AD2d 22, 27 (1^st Dep't 1992), appeal denied in part, dismissed in part 80 NY2d 1005 (1992) (internal quotations omitted). As such, plaintiffs' motion to reargue is granted and both prior motions to dismiss are denied as plaintiffs timely commenced this action within the statute of limitations. Furthermore, as previously stated in this Court's Prior Decision, "[t]he court notes that plaintiff's counsel has provided good cause for failure to effectuate service within the one hundred twenty-day time limit". Prior Decision, p. 2. As such, in the Court's discretion, and with good cause shown, plaintiffs time to serve defendants is extended for 60 days pursuant to CPLR §306-b.

As to the Goddard Riverside Defendants' argument that no new facts are alleged by plaintiffs in the instant motion, such argument also fails. Even if the Court were to consider plaintiffs instant motion as a motion to renew, the Court may consider the fact that the statute of limitations expired on a Sunday even if such fact was known to the parties at the time the original motion was made. The Appellate Division, First Department has specifically held that "[o]n a motion to renew, defendant provided [additional evidence that was available at the time of the original motion], offered a reasonable excuse for its failure to include the new evidence in the original motion (i.e., law office failure), and demonstrated the merit of its defense." Joseph v Bd of Ed. of the City of New York, 91 AD3d 528, 529 (1^st Dep't 2012). Here, plaintiffs' counsel inadvertently failed to argue that this action was timely commenced within the statute of limitations in the two prior motions. Such failure constitutes law office failure and the Court, in its discretion and in the interests of justice, now takes the new facts into consideration.

Of note is the longstanding and well settled proposition that New York courts favor resolution of actions on their merits. See Picinic v Seatrain Lines, Inc., 117 AD2d 504, 508 (1st Dep't 1986). Furthermore, the Appellate Division, First Department clearly and explicitly stated that:

[a] motion for leave to renew is intended to bring to the court's attention new or additional facts which, although in existence at the time the original motion was made, were unknown to the movant and were, therefore, not brought to the courts' attention. This requirement, however, is a flexible one and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made. Indeed, we have held that even if the vigorous requirements for renewal are not met, such relief may be properly granted so as not to defeat substantive fairness".

Tishman Constr. Corp. v City of New York, 280 AD2d 374, 376-377 (1^st Dep't 2001)(internal citations and quotations omitted). CPLR§2221(e) permits a party to move for leave to renew a decision to assert "new facts not offered on the prior motion that would change the prior determination or...demonstrate that there has been a change in the law that would change the prior determination". CPLR §2221(e).

Here, it is undisputed that plaintiffs properly and timely commenced this action. However, in both original motions, plaintiffs inadvertently failed to bring such fact to the Court's attention and this action was dismissed as untimely. It is palpably unfair and prejudicial to plaintiffs to have their case dismissed under these circumstances. Thus, the Goddard Riverside Defendants' argument regarding new facts must also fail. In the interests of justice, the Court grants plaintiffs' instant motion to renew, and both prior motions to dismiss are denied as plaintiff timely commenced this action within the statute of limitations. For the reasons stated above, plaintiffs time to serve defendants is extended for 60 days.

Accordingly, it is

ORDERED that plaintiffs Holger Moran and Mariela Guaman's motion to renew is granted; and it is further

ORDERED that upon renewal, the Court vacates its prior order, dated August 1, 2018, and both defendant Jamie R. Delacruz-Espinal's motion, mot. seq. 001, and defendants Goddard Riverside Community Center and Shemir Donaldson-Prentiss' motion, mot. seq. 002, to dismiss are denied in their entirety; and it is further

ORDERED that plaintiffs shall serve all defendants within 60 days; and it is further

ORDERED that, within thirty days, plaintiffs shall serve a copy of this order upon all parties, together with notice of entry.

This constitutes the Decision/Order of the Court. 3/12/2019

DATE

/s/ _________

ADAM SILVERA, J.S.C.