Opinion
No. L & T 87923/06.
10-02-2014
TRIBECA EQUITY PARTNERS L.P., Petitioner–Landlord, v. Richard SAVITT, Respondent–Tenant.
Todd Nahins, Esq., Borah Goldstein Alschuler Nahins & Goidel PC, New York City, for Petitioner. Richard P. Savitt, Esq. (self-represented),;Savitt Law Firm, PLLC, New York City, for Respondent.
Todd Nahins, Esq., Borah Goldstein Alschuler Nahins & Goidel PC, New York City, for Petitioner.
Richard P. Savitt, Esq. (self-represented),;Savitt Law Firm, PLLC, New York City, for Respondent.
Opinion
JAMES E. D'AUGUSTE, J.
Respondent Richard Savitt seeks leave to renew and reargue, pursuant to CPLR 2221, this Court's decision and order dated June 24, 2014 (the “Decision”). Familiarity with this opinion is assumed. The Decision denied Savitt's motion to vacate, granted Petitioner Tribeca Equity Partners L.P.'s (“Tribeca”) motion seeking attorneys fees, and sua sponte imposed sanctions against Savitt after a hearing. For the reasons set forth below, the motion is denied.
The Decision is published at Tribeca Equity Partners L.P. v. Savitt, 44 Misc.3d 1201(A) (Civ.Ct., N.Y. County Jun. 24, 2014).
I.Motion to Renew
It is black letter law that a motion seeking leave to renew must be supported by information that was not known or otherwise available to the party at the time of the original motion. Shapiro v. State, 259 A.D.2d 753, 753 (2d Dep't 1999). Here, Savitt is unable to meet this burden, as the information upon which he bases his motion was available at the time this matter was originally considered by this Court. Indeed, Savitt has had multiple opportunities to submit this information, including in a post-hearing submission, which he waived. Decision at 29–31. Having failed to demonstrate an entitlement to renewal, the instant motion is required to be denied by this Court. Shapiro, 259 A.D.2d at 753–74 (denying renewal because a party lacked a reasonable excuse for failing to submit an affidavit with the original motion).
Moreover, the materials submitted with the motion would not provide a basis for relief as they actually demonstrated the falsity of his testimony. For instance, Savitt provided the following testimony regarding a December 3, 2013 court appearance:
THE COURT: Was there a paralegal or some[one] that showed up or something on that day?
MR. NAHINS: No, it was me, I was here.
THE COURT: For Mr. Savitt?
MR. SAVITT: No, it was me. Your Honor, I was here.
THE COURT: You appeared in front of me?
MR. SAVITT: No, I was here in front of the clerk at 9:30. She said it was not on the list. You can go. I said, there's nothing for me to do here. She said, no.
Tr. 109:4–13 (Feb. 18, 2014) (emphasis added). As articulated in the Decision, this Court found the above testimony to be false:
Another misstatement by Savitt is his contention during the sanctions hearing [that] he attended the December 3, 2014 court appearance in which his motion and Tribeca's cross-motion were scheduled to be orally argued. Savitt claimed that when he appeared in court, a clerk informed him that the case was not on the calendar, an assertion that is unsupported by the court's internal docketing system. Savitt's representation is also at odds with the clerk's notation on the file case's file jacket, which states “12/3/13 not.”
Decision at 47.
In his instant motion, Savitt's submission conclusively refutes the veracity of his representation that he personally appeared the morning of December 3, 2013, only to be misled by a court clerk regarding the calendaring of the case. Savitt submitted the affidavit of Ariel Govan, a New Jersey attorney, who attested that Savitt did not appear on December 3 until “immediately after 12:00 (I believe 12:02 or 12:03).” Govan Aff., sworn to July, 23, 2014, at ¶ 6. Savitt also submitted a letter addressed to this Court dated December 4, 2013, which is not in the court file and was not submitted during the hearings. In this letter, Savitt asserted that he was handling another matter in a different courthouse and apparently appeared for this matter after the entire Special Term I calendar had been completed:
I was in oral argument before the Honorable Judge Kornreich in the matter of Zorse v. Stewart Title Eastern Caribbean N.Y. Supreme Court Index No.: 154416/13, until approximately 11:57 a.m. on December 3, 2013. Upon completion I ran over to the Civil Court and appeared at 12:04 p.m. but your Honor had left the bench.
Letter dated December 4, 2013, annexed to Savitt's moving papers. Therefore, Savitt's own submission confirms this Court's original conclusion of the falsity of Savitt's claim that he appeared for oral argument of his motion to vacate and Tribeca's cross-motion for attorneys' fees on December 3 at 9:30 a.m. only to be misled by a court clerk.
The oral argument before the Hon. Shirley W. Kornreich that Savitt references in his letter resulted in a decision wherein Savitt's factual representations were determined to be “inherently incredible.” Zorse v. Stewart Title Eastern Carribean Ltd., 2014 N.Y. Slip Op. 30312(U) (Sup.Ct., N.Y. County Jan. 14, 2014).
The undersigned did not “testify under oath” at the hearings regarding the December 3 court appearance. Savitt fails to provide a transcript reference supporting this bizarre claim.
The perplexing nature of Savitt's misrepresentation is that it was unnecessary. First, Savitt could have submitted an affidavit of actual engagement, pursuant to 22 NYCRR 125.1, relating to the conflicting court appearances on December 3. Second, Savitt was not sanctioned for failing to appear on December 3, but for making factual misrepresentations to this Court. Decision at 48, fn. 22 (“Savitt is not sanctioned for failing to attend the August 16 and December 3, 2013 court appearances”).
While Savitt claims that Govan was his legal representative, she is not a New York attorney. Indeed, Govan sent an email to Savitt in which she made clear that she was not permitted to appear as his attorney: “just to make it extra clear that I'm not a lawyer and won't be able to argue anything.” Email dated December 2, 2013, annexed to Savitt's moving papers.
The Court also finds no merit in Savitt's attempt to deflect blame for his own misconduct as it related to multiple defective subpoenas. Savitt engaged in frivolous behavior for serving defective subpoenas dated February 20, 2014. Far from attempting to thwart Savitt's ability to obtain discovery, the undersigned granted Savitt permission to serve subpoenas. In doing so, Savitt was instructed that he was not to sign the subpoenas:
Savitt incorrectly asserts in his motion papers that this Court quashed a so-ordered subpoena dated August 2, 2013. This subpoena, by its terms, related to an August 15, 2013 court appearance before the Hon. Debra R. Samuels. As memorialized by the “affidavits of attempted service,” the subpoena was never served. Affidavits of Sheri Ann Pochat and Dominic Dellaporte, both sworn August 9, 2013, attached to Savitt's motion papers. Savitt's assertion that this subpoena was quashed on March 18, 2014 lacks any foundation in fact.
MR. SAVITT: ... If I may inquire, do I need to have those subpoenas so ordered by your Honor?
THE COURT: Yes, you're not allowed to sign the subpoenas yourself as a party. You can submit the subpoena in to be so ordered by the Court.
MR. SAVITT: Anybody can do that.
THE COURT: You can submit it in and the clerk will stamp it I believe. You're not allow[ed] to sign.
Tr. 130:19–131:1 (Feb. 18, 2014). Savitt, an attorney, not only failed to abide by this directive, but blamed yet another unnamed court clerk and the Hon. Jennifer G. Schecter for his frivolous behavior. Tr. 65:21–68–21 (Mar. 18, 2014).
“THE COURT: Do you know the name of the clerk? MR. SAVITT: No .” Tr. 68:5–7 (Mar. 18, 2014).
Savitt submitted a so-called supplemental affidavit attaching a rent ledger and an online real estate listing. Savitt's attempt to supplement his moving papers after Tribeca has submitted its opposition was exactly the type of impermissible litigation conduct for which Savitt has been criticized by judges in multiple decisions. In any event, the documents do not support Savitt's assertion that an unidentified representative of his landlord orally agreed to waive rental arrears. For instance, the rental arrears are shown to be accruing from the time Savitt stopped paying his rent after August 1, 2006 until his departure from the premises in conformance with the time frame called for in the so-ordered stipulation of settlement. The rent ledger also documents Tribeca's legal fees relating to its efforts to prosecute the instant litigation to have Savitt removed from the subject apartment. Compare Rent Ledger with Exh. 24. Finally, a printout of a web-page apparently relating to Savitt's apartment being re-rented after it was later combined with a second apartment is not probative evidence of an agreement by Tribeca to waive the substantial unpaid rental arrears.
Accordingly, that branch of the motion seeking leave to renew the Decision is denied.
II.Motion to Reargue
That branch of Savitt's motion seeking leave to reargue is also denied. A motion to reargue is required to be based “upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” Mazinov v. Rella, 79 AD3d 979, 980 (2d Dep't 2010). The motion “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.” McGill v. Goldman, 261 A.D.2d 593, 594 (2d Dep't 1999).
Savitt has not demonstrated that this Court overlooked or misapprehended a material fact or applicable law. Instead, Savitt repeatedly attempts to obfuscate the actual bases for the various findings made by this Court. Without addressing his contentions seriatim, Savitt, for example, misstated the import of his two non-payment proceedings with the landlord immediately preceding his tenancy with Tribeca in Bowery at Spring Partners, LP v. Savitt, New York County Civil Court Index Nos. L & T 096767/03 (Spring Partners I ) and L & T 82369/04 (Spring Partners II ). Savitt was not questioned about these cases because they purportedly demonstrated a pattern of wrongful conduct in not paying his rent. Rather, Savitt was questioned about these two actions because he affirmatively represented to Judge Samuels that he had never been in Housing Court prior to the instant proceeding. Decision at 17–18. Savitt's attempt to misdirect from the purpose of the inquiry into these two actions was addressed during the evidentiary proceedings that led to the Decision as follows: “Once again, you're simply diverting attention to the merits of the underlying case, as opposed to the veracity of your affirmative statement.” Tr. 57:15–18 (Mar. 18, 2014); see also id. at Tr. 56:8–9 (“It's the existence of Spring Partners that's the problem for you”).
Accordingly, as this Court has not overlooked or misapprehended any facts or misapplied any controlling principle of law in rendering its ruling, that branch of the motion seeking reargument is denied.
Therefore, in accordance with the foregoing, it is hereby ordered that Savitt's motion is denied in all respects. This constitutes the Court's decision and order.