Opinion
Index No. 616044/2021
10-27-2022
COZY BAY ASSOCIATES LLC, Plaintiff, v. Rukhsana BARI, individually and d/b/a NanoTech Systems, Defendants.
Adam Kleinberg, Esq. of Sokoloff Stern LLP, Attorney for Plaintiff.
Adam Kleinberg, Esq. of Sokoloff Stern LLP, Attorney for Plaintiff.
Conrad D. Singer, J. Plaintiff Cozy Bay Associates LLC (the "plaintiff") seeks an Order, pursuant to CPLR § 2221(d), granting the plaintiff leave to reargue its previous motion for a default judgment against the defendants, and, upon reargument, granting the plaintiff a default judgment against the defendants, Rukhsana Bari ["Bari"], individually and d/b/a NanoTech Systems [collectively, "defendants"]; and, pursuant to CPLR § 2221(e), granting the plaintiff leave to renew its previous request for attorney's fees in favor of the plaintiff and against the defendants, and awarding the plaintiff default judgment against the defendants in the amount of $20,172.00, plus statutory interest, attorneys’ fees, costs, and disbursements. The plaintiff's unopposed motion is determined as set forth herein:
The plaintiff in this breach of lease action previously moved for default judgment against the defendants pursuant to CPLR § 3215, due to their failure to answer the Complaint or appear in this action. By Decision and Order entered July 11, 2022, this Court granted the plaintiff's motion for default judgment as to defendant Rukhsana Bari, d/b/a NanoTech Systems, and denied the plaintiff's motion for default judgment as to defendant Rukhsana Bari, individually. The partial denial of the plaintiff's previous motion for default judgment was based on this Court's determination that the plaintiff failed to submit proof of service as to individual defendant Rukhsana Bari. Under CPLR § 2221(d), a motion to reargue a prior decision 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. In this case, the plaintiff disagrees with the Court's determination that the plaintiff failed on its underlying default motion to submit proof of service as to individual defendant Rukhsana Bari. The plaintiff contends that Exhibits B and C appended to its prior Default Judgment Motion constituted proof of service upon Ms. Bari. In reviewing same, and in light of the fact that the Court finds no case law or statutory law which requires the plaintiff to serve Ms. Bari more than once, even though she was sued both individually and in her capacity d/b/a NanoTech Systems, the Court is now satisfied based on the plaintiff's current motion papers that the plaintiff established proof of service of the underlying default motion against Ms. Bari, individually and d/b/a NanoTech Systems. Accordingly, the portion of the plaintiff's motion which seeks reargument is GRANTED. Upon reargument, the Court finds that the plaintiff has established entitlement to default judgment against the defendants and the plaintiff's motion for default judgment against the defendants is GRANTED.
The plaintiff also moves to renew its prior application for attorney's fees pursuant to CPLR § 2221(e), which provides, in pertinent part, that a "motion for leave to renew ... [2] shall be based upon new facts not offered on the prior motion that would change the prior determination". This Court previously denied the plaintiff's request for attorney's fees contained in its prior Default Judgment Motion due to the plaintiff's failure to include any proof of attorney's fees accrued and its failure to establish the reasonableness of such fees. In the plaintiff's present motion to renew, the plaintiff's counsel explains that counsel filed its support for the attorney's fee application on July 6, 2022. This occurred after this Court signed the prior Decision and Order [July 5, 2022], but before entry of same.
This Court "has the discretion to grant renewal upon facts known to the movant at the time of the original motion ... provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion". ( Mooklal v. Clermont Farm Corp. , 187 A.D.3d 740, 741, 133 N.Y.S.3d 38 [2d Dept. 2020] ). Moreover, "[w]hat constitutes a reasonable justification, including law office failure, is within the discretion of the Supreme Court". ( Mooklal , 187 A.D.3d at 741, 133 N.Y.S.3d 38 ).
The plaintiff indicates that the failure to timely file its support for the attorney's fee application was due to law office failure, and plaintiff's counsel also points out that the defendants never objected to the delayed filing of such documents, as they did not oppose the plaintiff's prior Default Judgment Motion. The defendants have also failed to oppose or otherwise respond to the plaintiff's present Motion to Renew/Reargue. The Court has reviewed the evidence submitted by the plaintiff in support of its application for attorney's fees and finds that such evidence would have changed the Court's prior determination to deny the request for attorney's fees. The exhibits appended to the plaintiff's Motion to Renew establish that the parties’ lease agreement required the defendants to compensate the plaintiff for all reasonable expenses incurred to enforce their lease, including reasonable attorney's fees, and counsel's affirmation and exhibits thereto establish the reasonableness of the $1,293.50 sought in attorney's fees and $840.03 sought in expenses [$2,133.53 total in fees and costs].
For the foregoing reasons, the plaintiff's motion to renew/reargue is GRANTED in its entirety.
Accordingly, it is hereby,
ORDERED , that the portion of the plaintiff's motion which seeks leave to reargue pursuant to CPLR § 2221[e] is GRANTED, and, upon reargument, the plaintiff's motion for default judgment against defendants Rukhsana Bari, individually and d/b/a NanoTech Systems is GRANTED; and it is further,
ORDERED , that the portion of the plaintiff's motion which seeks leave to renew its prior application for attorney's fees pursuant to CPRL § 2221[d] is GRANTED, and, upon renewal, the plaintiff's application for $2,133.53 total in fees and costs [$1,293.50 in attorney's fees and $840.03 in expenses] is GRANTED; and it is further,
ORDERED , that plaintiff's application for an award of default judgment against the defendants in the amount of $20,172.00, plus statutory interest thereon, plus attorney's fees and expenses totaling $2,133.53, plus costs and disbursements, is GRANTED.
This constitutes the decision and Order of this Court.