Opinion
No. 0220/07.
2010-03-16
Robert J. CONGEL, Bruce A. Kenan and James A. Tuozzolo, as members of the Executive Committee of, and on behalf of, Poughkeepsie Galleria Company, Plaintiffs, v. Marc A. MALFITANO, Defendant.
Vincent L. Debiase, Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, Anthony S. Fiotto, Esq. Goodwin Procter, LLP, New York, Attorneys for Plaintiffs. James L. Sonneborn, Esq. Green & Seifter, PLLC, Syracuse, Attorneys for Defendant.
Vincent L. Debiase, Esq., Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, Anthony S. Fiotto, Esq. Goodwin Procter, LLP, New York, Attorneys for Plaintiffs. James L. Sonneborn, Esq. Green & Seifter, PLLC, Syracuse, Attorneys for Defendant.
JAMES D. PAGONES, J.
Defendant Marc A. Malfitano moves for leave to reargue motions for summary judgment and discovery which were resolved by a decision and order of this court dated December 14, 2009. The defendant moves separately for leave to renew and leave to reargue his prior motion for leave to amend his verified answer with counterclaims which application was denied in the court's decision and order dated December 14, 2009. The plaintiffs move for a protective order pursuant to CPLR § 3103(a) related to this court's discovery order.
CPLR Rule 2221(d)(2) mandates that a motion for leave to reargue must be based “upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.”
CPLR Rule 2221(e)(2) requires that a motion for leave to renew 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.”
SUMMARY JUDGMENT/DISCOVERY MOTIONS
The plaintiffs previously moved for summary judgment regarding defendant Malfitano's fifth, sixth and seventh counterclaims as well as all of his cross-claims. Defendant Malfitano moved at that time to compel discovery for summary judgment on his counterclaims. In its prior decision and order, this court granted the plaintiffs' application to dismiss defendant Malfitano's fifth, sixth and seventh counterclaims and all of his cross-claims. In that December 14, 2009 decision and order, the court directed the parties to engage in discovery by delineating precisely the documents to be exchanged; a schedule for completing depositions; and an order of confidentiality. On this motion, defendant Malfitano has failed to establish that the court misapprehended or overlooked any matter of fact or law on that prior motion. Instead, he has merely restated his prior argument. Under the circumstances, the defendant has failed to establish that the court mistakenly arrived at its earlier determination. (Matter of Williams v. Board of Education of City School District of the City of New York, 24 AD3d 458, 459 [2d Dept.2005].) Therefore, it is ordered that the defendant's motion for leave to reargue the prior motions for summary judgment and discovery is denied.
LEAVE TO AMEND
Defendant Malfitano previously moved for leave to amend his amended verified answer with counterclaims to include a cause of action for an accounting pursuant to Partnership Law §§ 73 and 74. In its decision and order of December 14, 2009, this court denied the defendant's application. The defendant now seeks leave to reargue and leave to renew his prior application and upon the grant of leave to reargue or renew, for an order permitting him to amend his amended verified answer with counterclaims.
CPLR Rule 2221 requires that any combined motion for leave to reargue or leave to renew, as the defendant has submitted herein, “shall identify separately and support separately each item of relief sought.” (CPLR Rule 2221[f].) Defendant Malfitano has failed to comply with that requirement and makes no distinction in this combined motion for leave to renew and leave to reargue.
Leave to Reargue
Defendant Malfitano has failed to indicate in what manner this court may have overlooked or misapprehended any facts or law in determining the prior motion which denied his application for leave to amend. Therefore, it is ordered that the defendant's motion for leave to reargue his prior application for leave to amend is denied.
Leave to Renew
The “new fact” which defendant Malfitano relies on as the basis for this application is that his proposed amended verified answer with counterclaims “was inadvertently left out of the motion papers due solely to office failure.” The defendant has now included a proposed amended verified answer with counterclaims on the instant application. A motion for leave to renew based on facts that are not really new but were in existence at the time of the prior motion requires the defendant to offer a reasonable excuse as to why the additional facts were not originally submitted. (Caffee v. Arnold, 104 A.D.2d 352 [2d Dept.1984].) On this application, the defendant asserts that the amended verified answer and counterclaims were prepared at the time of the prior motion but were not made available to the court due to “law office failure.” Under the circumstances presented, the court finds that defendant Malfitano has established a valid explanation for not presenting the amended verified answer on the prior motion. (Miller v. Fein, 269 A.D.2d 371 [2d Dept.2000] appeal dismissed 95 N.Y.2d 887 [2000].) Therefore, it is ordered that defendant Malfitano's motion for leave to renew is granted. The following constitutes the court's decision and order with regard to the renewed application for leave to amend.
CPLR Rule 3025(b) specifically provides:
“A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.”
In a decision and order dated April 21, 2009, the Appellate Division, Second Department held, inter alia, that defendant Malfitano had wrongfully dissolved the Poughkeepsie Galleria Company partnership and dismissed his counterclaims alleging that he was entitled to a dissolution of the partnership. (Congel v. Malfitano, 61 AD3d 810 [2d Dept.2009].) Defendant Malfitano's proposed amended verified answer with counterclaims submitted herein includes separate causes of action for an accounting pursuant to Partnership Law § 73 and § 74.
Partnership Law § 73 provides:
“When any partner retires or dies, and the business is continued ... without any settlement of accounts as between him or his estate and the person or partnership continuing the business ... he ... may have the value of his interest at the date of dissolution ascertained.”
Partnership Law § 73 is not applicable here because the partnership has not been dissolved and no partner has retired or died.
Partnership Law § 74 provides:
“The right to an account of his interest shall accrue to any partner ... as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of agreement to the contrary .”
Again, the appellate division has held that there has been no dissolution of the subject partnership so there is no basis for any relief pursuant to Partnership Law § 74. Defendant Malfitano continues to maintain the fiction that the subject partnership has been dissolved. Based on this court's careful review of the proposed amended pleadings, it is evident that each of defendant Malfitano's proposed additional claims are palpably insufficient and patently devoid of merit. (Lucido v. Mancuso, 49 AD3d 220, 230 [2d Dept.2008].) Therefore, it is ordered that defendant Malfitano's motion for leave to amend his pleading is denied.
PROTECTIVE ORDER
The plaintiffs have established that they have made a good faith effort to resolve a discovery dispute as required by 22 NYCRR § 202.7.
This court's December 14, 2009 decision and order included very specific discovery provisions. Consistent with that decision and order, the court executed on December 14, 2009 a separate order regarding the valuation proceeding and an expedited discovery schedule. Additionally, the court executed a confidentiality order on January 8, 2010 with regard to the production of documents, testimony and other materials and information related to this action.
On or about January 12, 2010, defendant Malfitano served notices for depositions upon Robert Congel, James Tuozzolo and Bruce Kenan. On or about January 19, 2010, defendant Malfitano served a subpoena for deposition of non-party witness Robert Utter.
These depositions were previously the subject of defendant Malfitano's motion to compel discovery which was decided by the court on December 14, 2009 and has been the subject of defendant's motions for leave to reargue and leave to renew. While those specific demands were considered by the court and rejected as evidenced by the court's decision and several orders regarding discovery, defendant Malfitano has chosen to entirely ignore this court's orders and attempt to secure the depositions in spite of the court's decision.
CPLR § 3103(a) permits this court to make a protective order regulating the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to a party or to the court.
As noted in the court's decision and order of December 14, 2009, the parties are incapable or unwilling to conduct meaningful discovery without the supervision of the court. For that reason, the court took the unusual step to specifically delineate the extent of discovery. Defendant Malfitano has disregarded the orders of the court and is now attempting to expand the scope of discovery anticipated by the court. He has done so unilaterally without attempting to demonstrate that he has complied with the existing orders of the court. He urges that he has somehow been prejudiced or denied appropriate discovery as a result. Consequently, the court finds it necessary at this juncture to enforce the extant orders and to insulate the plaintiffs from extraneous discovery beyond the scope delineated by the court at least until such time as all court ordered discovery has been completed. Therefore, it is ordered that the plaintiffs' application for a protective order, pursuant to CPLR § 3103(a), is granted and defendant's several notices for deposition are vacated.
It is further ordered in the discretion of the court, pursuant to CPLR §§ 8106 and 8202, that the plaintiffs are awarded motion costs in the amount of $100.00 to be paid by defendant Marc Malfitano within ten days of the date of this order and the plaintiffs shall have judgment therefore.
The foregoing constitutes the decision and order of the