Opinion
22138/2010
03-20-2012
East West Bank, etc. v. 7128 Fresh Meadows, LLC, et al.
For the Plaintiff: Lowenstein Sandler PC, by Maureen E. Montague, Esq. For Defendants 7128 Fresh Meadows, LLC, Zhi Cheng Huang, and Zorion, Inc.: Trop & Spindler, by Gail E. Spindler, Esq.
For the Plaintiff: Lowenstein Sandler PC, by Maureen E. Montague, Esq.
For Defendants 7128 Fresh Meadows, LLC, Zhi Cheng Huang, and Zorion, Inc.: Trop & Spindler, by Gail E. Spindler, Esq.
Charles J. Markey, J.
Notice of Motion - Affidavits - Exhibits .............................................................................1
Answering Affidavits - Exhibits ..........................................................................................2
Order of United States Bankruptcy Court dated October 19, 2011.......................................3
Order of the United States Bankruptcy Court,
dated December 22, 2011....................................................................................... 4
Plaintiff East West Bank previously moved, pursuant to CPLR 3212, for summary judgment against defendants 7128 Fresh Meadows, LLC ("7128 Fresh Meadows"), Zhi Cheng Huang, and Zorion, Inc. ("Zorion"), on their first and second causes of action, for an order and judgment of foreclosure and striking their answer.
Defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion cross moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint asserted against them, or in the alternative, pursuant to CPLR 3101, to compel plaintiff to comply with their outstanding discovery demands.
By decision and order dated May 2, 2011, the motion by plaintiff was granted, and the cross motion by defendants 7128 Fresh Meadows, Zhi Cheng Huang and Zorion was denied. East West Bank v 7128 Fresh Meadows, LLC, 31 Misc 3d 1228(A), 2100 WL 1901809, 2011 NY Slip Op 50892(U) [Sup Ct Queens County 2011] [decision by the undersigned].
Upon the foregoing papers, defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion move for leave to reargue this Court's order dated May 2, 2011, to the extent the order granted plaintiff summary judgment in its favor on the first and second causes of action, and denied their cross motion for summary judgment dismissing the complaint asserted against them and to compel plaintiff to comply with their outstanding discovery demands. The defendants, in their motion to reargue, request that the Court, upon reargument, deny the motion by plaintiff for summary judgment on its first and second causes of action and grant their cross motion for summary judgment dismissing the complaint, or in the alternative, to compel plaintiff to comply with their outstanding discovery demands.
As an initial matter, the Court notes two orders of the United States Bankruptcy Court of the Eastern District of New York. First, by order dated October 19, 2011, Bankruptcy Judge Carla E. Craig, plaintiff East West Bank was granted relief from the automatic stay pursuant to Bankruptcy Code section 362(d) (2) in pursuing the present state court litigation. Second, by order dated December 22, 2011, Judge Craig dismissed the bankruptcy action of the debtor 7128 Fresh meadows, LLC, pursuant to 11 U.S.C. section 1112(b).
Turning to the merits of the present defense motion, a movant, seeking to reargue a prior decision or order, must demonstrate matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion (CPLR 2221[d][2]).
Defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion allege that the Court misapprehended that the plaintiff is entitled to summary judgment in its favor. They contend that questions of fact exist warranting a trial, including as to whether the FDIC retained the mortgage loan as an asset, whether Dennis Lee had the requisite authority pursuant to the FDIC limited power of attorney to execute the allonge, and whether plaintiff and its predecessors exercised good faith and fair dealing in connection with defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion.
Defendants 7128 Fresh Meadows, Zhi Cheng Huang and Zorion also contend that the Court should have compelled plaintiff to comply with their discovery demands, because they seek to obtain evidence of the manner in which the mortgage loan came to be assigned to plaintiff and the process used by plaintiff's predecessor in making its decisions regarding the extension of the mortgage loan.Plaintiff opposes the motion.
A motion for reargument is one "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]).It is well settled that "[i]ts purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567-568 [1st Dept. 1979], lv. to appeal denied, 56 NY2d 507 [1982]).The motion for reargument is not an opportunity for the unsuccessful party to present arguments not previously advanced (Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434, 435-436 [2nd Dept. 2005]).
The Appellate Division, Second Judicial Department, in Haque v Daddazio, 84 AD3d 940 [2011], in reversing the lower court's granting of a motion to reargue, recently cautioned:
Thereafter, in his motion for leave to reargue his opposition to that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, the plaintiff merely reiterated his prior contentions. The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, since the plaintiff failed to show that the Supreme Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and, moreover, he improperly presented arguments not previously advanced (see, CPLR 2221d][2]). 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 not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" [Mazinov v Rella, 79 AD3d 979, 980, quoting McGill v Goldman, 261 AD2d 593, 594).Haque v Daddazio, 84 AD3d at 941-942.
Defense counsel merely asserts that the Court should reconsider the arguments previously raised, and grant the relief sought. Contrary to defense counsel's assertions, the Court was aware of the arguments raised in the original application, and no basis exists for granting leave to reargue.
Recently, this Court reminded the Bar of the nature of a motion to reargue and the thought that should be required before undertaking such an endeavor in knee-jerk fashion. The undersigned in Rahman v Bengal Poultry Inc., 34 Misc 3d 1231(A), 2012 WL 637682, 2012 NY Slip Op 50332 (U), slip op at 1 [Sup Ct Queens County 2012], stated:
The Court reminds counsel that, while the vehicle of reargument has a salutary function, counsel should pause before making a knee jerk reargument motion. Especially considering the volume of work facing a Supreme Court Justice of an IAS Part, the endeavor and effort of making a reargument motion is futile where the Court's original decision is comprehensive, and nothing new is advanced by counsel to support a reargument decision.
Defendants 7128 Fresh Meadows, Zhi Cheng Huang, and Zorion, upon the foregoing papers, have failed to establish that the Court overlooked or misapprehended any relevant facts or law, or that it misapplied any controlling principle of law. Under such circumstances, that branch of the motion for leave to reargue the prior order of the Court dated May 2, 2011 (East West Bank v 7128 Fresh Meadows, LLC, 31 Misc 3d 1228(A), 2100 WL 1901809, 2011 NY Slip Op 50892(U) [Sup Ct Queens County 2011] [decision by the undersigned], is denied.
The foregoing represents the order, opinion, and decision of this Court.
J.S.C.
Dated: March 20, 2012