Opinion
509966/16
02-13-2019
Steven STAHLMAN, Plaintiff, v. NYU LANGONE HEALTH SYSTEM d/b/a NYU Lutheran Medical Center, Defendants.
Attorney for Plaintiff, Arthur H. Forman, Esq., 98-20 Metropolitan Avenue, Forest Hills, NY 11375, (718) 268-2616 Attorney for Defendant, Michael P. Collins, Esq., Bond Schoeneck & King PLLC, 600 Third Avenue, 22nd Floor, New York, NY 10016, (646) 253-2300
Attorney for Plaintiff, Arthur H. Forman, Esq., 98-20 Metropolitan Avenue, Forest Hills, NY 11375, (718) 268-2616
Attorney for Defendant, Michael P. Collins, Esq., Bond Schoeneck & King PLLC, 600 Third Avenue, 22nd Floor, New York, NY 10016, (646) 253-2300
Francois A. Rivera, J.
By notice of motion filed on August 24, 2018 under motion sequence three (hereinafter the prior motion), NYU Langone Health System (hereinafter NLHS) moved pursuant to CPLR 3212 for an order granting summary judgment in its favor on the issue of liability and dismissal of the complaint. Plaintiff Steven Stahlman (hereinafter Stalhlman or plaintiff) had opposed the prior motion.
By decision and order dated October 26, 2018 (hereinafter the prior order), the Court denied NLHS's prior motion for failing to annex its answer to the complaint to the motion papers.
By the instant notice of motion NLHS seeks to reargue their prior motion. BACKGROUND
On June 13, 2016, Stahlman commenced the instant action seeking, among other things, damages and injunctive relief based on NLHS's alleged violations of Labor Law § 741, by electronically filling a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). By verified answer dated August 5, 2018, NLHS joined issue.
MOTION PAPERS
NLHS's motion papers consist of a notice of motion, a memorandum of law, an affirmation of counsel in support and eight annexed exhibits labeled A through H. Exhibit A is a copy of the prior order with notice of entry. Exhibit B is a copy of NLHS's prior notice of motion. Exhibit C is a copy of Stahlman's opposition to the prior motion. Exhibit D is a copy of the NLHS's reply to Stahlman's opposition to the prior motion. Exhibit E is a copy of the transcript of the proceedings conducted on October 26, 2018 in which the prior order was issued. Exhibit F is another copy of the prior order with notice of entry. Exhibit G is a copy of the defendant's verified answer with an affidavit of service of same. Exhibit H is a copy of plaintiff's verified complaint.
Stahlman has opposed the motion with a memorandum of law, an affirmation of counsel and four annexed exhibits labeled A through D. Exhibits A is a copy of the instant summons and verified complaint. Exhibit B is a copy of the note of issue with a confirmation of its electronic filing on February 6, 2018. Exhibit C is a copy of an order dated June 1, 2018, which extended the parties time to move for summary judgment. Exhibit D is described as a WebCivil Supreme Appearance detail for the instant action.
NLHS submitted a memorandum of law in reply to plaintiff's opposition and in further support of its own motion.
LAW AND APPLICATION
CPLR 2221(d) — (f) sets forth the procedure for making a motion affecting a prior order and states the following:
(d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.
(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.
(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.
Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision ( Barnett v. Smith , 64 A.D.3d 669, 670-671, 883 N.Y.S.2d 573 [2nd Dept. 2009]citing, E.W. Howell Co., Inc. v. S.A.F. La Sala Corp. , 36 A.D.3d 653 at 654, 828 N.Y.S.2d 212 [2nd Dept. 2007] ; see also, Beverage Marketing USA, Inc. v. South Beach Beverage Co., Inc. , 58 A.D.3d 657, 873 N.Y.S.2d 84 [2nd Dept. 2009] ).
The following facts are not disputed. The NLHS's prior motion papers, a copy of which are annexed as exhibit B to the instant motion, sought summary judgment in its favor on the issue of liability and dismissal of the complaint pursuant to CPLR 3212. Neither NLHS nor Stahlman included a copy of the NLHS's verified answer to the complaint to their respective prior motion papers. Plaintiff's memorandum of law in opposition to the prior motion did not address the fact that the defendant's verified answer was not annexed to the defendant's prior motion. Furthermore, neither the defendant's motion papers, plaintiff's opposition papers or defendant's reply papers stated whether the defendant had interposed a verified answer to the complaint.
On October 26, 2018, during oral argument of the prior motion, the court brought to the attention of the parties that, assuming the defendant had answered the complaint, the defendant's answer was not included in either the defendant's motion papers, reply papers or in the plaintiff's opposition papers. When the defendant sought leave to remedy the defect by seeking permission to add its verified answer to the motion papers, the plaintiff opposed the request. On October 29, 2018, three days after oral argument of the prior motion, the defendant electronically filed its verified answer with the KCCO.
By the prior order, the court denied the defendant's motion for failure to annex a complete set of pleadings ( CPLR 3212(a) and (b) ; see also Wider v. Heller , 24 A.D.3d 433, 805 N.Y.S.2d 130 [2nd Dept. 2005] ).
In the instant motion, the defendant's have annexed its verified answer without seeking to renew the prior motion and without complying with the procedural requirements of CPLR 2221(e) or (f). Inasmuch as the instant motion was for reargument it should not have included new documents or new arguments which were not previously raised (see CPLR 2221[d][2] ). Furthermore, CPLR 2221(e)(3) provides that on a motion for renewal, the motion papers shall contain reasonable justification for the failure to present such facts on the prior motion. In the instant motion the defendant did not offer any justification for the failure to annex its answer to the complaint to the prior motion.
A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" ( V. Veeraswamy Realty v. Yenom Corp., 71 A.D.3d 874, 895 N.Y.S.2d 860 [2nd Dept. 2010]citing McGill v. Goldman , 261 A.D.2d 593, 691 N.Y.S.2d 75 [2nd Dept. 1999] ).
The defendant argues, inter alia, that the Court misapprehended the law by denying the prior motion rather than disregarding the failure to annex the pleading pursuant to CPLR 2001 as a mere irregularity. The defendant further argues that the Court misapprehended the law by denying the motion on a basis that was not raised by the plaintiff.
While there is appellate authority for disregarding a failure to annex a pleading to a CPLR 3212 motion, the Appellate Division Second Department cases in which that has occurred are distinguishable from the instant matter. For example, in the matter Sensible Choice Contracting, LLC v. Rodgers , 164 A.D.3d 705, 83 N.Y.S.3d 298 [2nd Dept. 2018] the Appellate Division affirmed the Supreme Court's determination to disregard the movant's failure to annex the pleadings to a summary judgment motion as mere irregularity. However, in the Sensible case the pleadings were not only electronically filed and available to the Supreme Court and the parties, but the answer was submitted by the defendants in opposition to the motion. In the matter of Long Island Pine Barrens Society, Inc. v. County of Suffolk , 122 A.D.3d 688, 996 N.Y.S.2d 162 (2nd Dept. 2014), the Supreme Court denied the movant's motion for summary judgment for failing to annex the pleading. The Appellate Division Second Department reversed the Supreme Court stated the following:
"Although the Supreme Court denied the plaintiffs' motion for summary judgment on the ground that they failed to submit a copy of the pleadings with their motion papers, we nonetheless exercise our discretion to reach the merits. Notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to "disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced" ( Avalon Gardens Rehabilitation & Health Care Ctr., LLC v. Morsello, 97 A.D.3d 611, 612, 948 N.Y.S.2d 377 [2nd Dept. 2012] ; see CPLR 2001 ; U.S. Bank N.A. v. Eaddy, 109 A.D.3d 908, 910, 971 N.Y.S.2d 336 [2nd Dept. 2013] ). Although the plaintiffs failed to include a copy of the pleadings with their motion for summary judgment, the defendants submitted a copy of the pleadings in connection with their opposition and cross motion for summary judgment. Under the particular circumstances presented here, we find that the record is sufficiently complete, and there is no proof that a substantial right of the defendants was impaired by the plaintiffs' failure to submit copies of the pleadings."
As these example make clear, the requirements to annex the pleading in a CPLR 3212 motion is statutorily mandated and the failure to do so provides a basis for denial of the motion without prejudice. However, if the pleadings are otherwise available to the Court either electronically or in the opponent's papers or in the movant's reply papers, the Supreme Court has the discretion to disregard the error as a mere irregularity if there is no impairment of the rights of the opponent of the motion.
On October 26, 2018, when the parties orally argued the prior motion, NLHS's answer to the complaint was not available electronically. At that time, no party had annexed NLHS's answer in their prior motion papers. Furthermore, the plaintiff would not consent to NLHS's oral request to simply annex its answer apart from the complete set of the prior motion papers.
Accordingly, the Court finds that it did not misapprehend the law or the facts or overlook anything. The prior order, however, is corrected to reflect that the denial is for NLHS's failure to comply with CPLR 3212(b) as opposed to CPLR 3212(a). Furthermore, the denial is without prejudice to renewal upon proper papers (see Wider, 24 A.D.3d at 434, 805 N.Y.S.2d 130 ; Welton v. Drobnicki , 298 A.D.2d 757, 757, 749 N.Y.S.2d 288 [3rd Dept. 2002] ).
CONCLUSION
NYU Langone Health System's motion for an order pursuant to CPLR 2221 granting it leave to reargue a prior motion for summary judgment is denied without prejudice.
The foregoing constitutes the decision and order of this Court.