Opinion
Index No. 616248/2022 Mot. Seq. 003-MD
08-02-2024
TRUMAN CAPITAL HOLDINGS, LLC, Plaintiff, v. DAVID S. OSTROVE A/K/A DAVID OSTROVE; TERESE OSTROVE A/K/A TERESE BARONE; RAYMOND A. TIERNEY, AS DIS TRICT ATTORNEY FOR SUFFOLK COUNTY; WELLS FARGO BANK. N.A.; "JOHN DOE" AND "JANE DOE" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein. Defendants.
FRIEDMAN V ARTOLO, LLP Attys. For Plaintiff PM LAW PC Attys for Defs David & Terese Ostrove
Unpublished Opinion
RECEIVED NYSCEF: 08/08/2024
MOTION DATE 4/ 22/ 24
SUBMIT DAT E 6/7 / 24
Conf. Date: 10/3/24
FRIEDMAN V ARTOLO, LLP Attys. For Plaintiff
PM LAW PC Attys for Defs David & Terese Ostrove
PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court
MEMO DECISION & ORDER
THOMAS F. WHELAN J.S.C.
Upon the following papers read on this motion to renew/reargue; Notice of Motion/Order to Show Cause and supporting papers ______; Notice of Cross Motion and supporting papers: NYSCEF Doc . 83 - 86; Opposing papers: NYSCEF Doc. 87 ; Reply paper NYSCEF Doc. 88-90; Other____; (and after hearin, 75-76 counsel in Support and and opposed to the motion) it is, ORDERED that the branch of the motion (#003) by defendants, David Ostrove and Terese Ostrove seeking reargument of the prior motions determined by Order dated May 19, 2024 and, upon such reargument, dismissal of the complaint or, alternatively, a traverse hearing, or, alternatively, a conference, is denied; and it is further
ORDERED that the branch of the motion (#003) by defendants. David Ostrove and Terese Ostrove seeking renewal of the prior motions determined by Order dated May 19, 2024 and. upon such renewal, dismissal of the complaint is denied; and it is further
ORDERED that plaintiffs counsel and counsel for defendants are directed to appear on October 3, 2024 at 10:00am in the courtroom of the undersigned in Part 33 located in the Supreme Court Annex Bldg, at One Court Street. Riverhead, New York, for a status conference; however, in the event a motion is filed on or before October 1,2024, no appearance will be necessary on October 3, 2024.
This is an action for foreclosure on residential property situated in West Islip. Familiarity with this Court's Order dated May 19, 2024 (the "May Order") is presumed, wherein the motion (#001) of defendants David and Terese Ostrove seeking dismissal of the complaint and the plaintiff s cross-motion (#002) for an extension of time to serve the defendants in the event the Court found in favor of the defendants on the issue of service, were both denied. The defendants thereafter filed an answer, through counsel, alleging twenty-seven affirmative defenses and eleven counterclaims. By the instant motion (#003), the defendants seek an order granting reargument and. upon such, dismissal of the complaint or, alternatively, a traverse hearing or a conference. In the alternative, the motion seeks renewal of the order and, upon such, dismissal of the complaint. The plaintiff opposes the motion and the defendants filed a reply.
CPLR 2221(d) provides that a motion for leave to reargue "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" (CPLR 2221 [d][2]). A motion for leave to reargue is thus not one which provides an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced. Nor is it one that provides a platform for the presentation of arguments different from those already presented (see V. Veeraswamy Realty v Yenom Corp., 71 A.D.3d 874. 895 N.Y.S.2d 860 [2d Dept 2010]; Woody's Lumber Co., Inc. v Jayram Realty Corp.. 30 A.D.3d 590, 817N.Y.S.2d 391 [2d Dept 2006]; Williams v Board of Educ. of City School Dist. of New York City, 24 A.D.3d 458, 805 N.Y.S.2d 126 [2d Dept 2005]; Simon v Mehryari, 16 A.D.3d 543, 792 N.Y.S.2d 543 [2d Dept 2005]).
A motion for leave to renew pursuant to CPLR 2221(e) "shall be based upon new tacts not offered on a prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion (Mellon v Izmirligil, 88 A.D.3d 930, 931 N.Y.S.2d 667 [2d Dept 2011]; Siegel v Morsey New Sq. Trails Corp., 40 A.D.3d 960, 836 N.Y.S.2d 678 [2d Dept 2007]). Alternatively, a motion for renewal may rest upon a demonstration "that there has been a change in the law that would change the prior determination (CPLR 2221 |e][2]). Additionally, "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 (Blackman v Red Lobster Hosp., LLC, 222 A.D.3d 825. 826.202 N.Y.S.3d413 [2d Dept 2023], citing Shvyetsov v 1900 Newkirk Ave., LLC, 217 A.D.3d 704, 705-706, 191 N.Y.S.3d 113 [2d Dept 2023] [internal quotation marks omitted]).
Here, the defendants fail to demonstrate its entitlement to reargument, as they fail to show that the Court overlooked or misapprehended any facts before it, in accordance with CPLR 2221 (d), when deciding the motions (#001, #002). Nor do the defendants assert "new facts" to support a motion to renew pursuant to CPLR 2221(e). The submission of unauthenticated "screen shots" of purported video (NYSCEF Doc. 85) does not warrant a different result, especially where, as here, the screen shots do not rebut the process server's account of events as noted in his affidavit of service (NYSCEF Doc. 14) and supplemental affidavit (NYSCEF Doc. 43). Additionally, as noted in the May Order, this Court's position is that FAPA and its amendments are to be applied prospectively to actions commenced on or after December 30. 2022, FAPA's effective date.
For these reasons, the defendants' motion (#003) is denied in its entirety.
Counsel for plaintiff and the defendants are directed to appear on October 3, 2024, at 10:00am for a status conference, however, in the event a motion is filed on or before October 1, 2024, no conference will be necessary on September 26, 2024.