Opinion
008171/2019
10-02-2019
Peter C. LOMTEVAS, Esq., Plaintiff, v. Sitaramarao Seema PRADHAN, Defendant.
Sitaramarao Seema Pradhan, pro se Peter C. Lomtevas, Esq., pro se
Sitaramarao Seema Pradhan, pro se
Peter C. Lomtevas, Esq., pro se
Consuelo Mallafre Melendez, J.
The court's Decision and Order is based upon consideration of the following papers:
CPLR 2219(a) Recitation
NOTICE OF MOTION & AFFIDAVITS ANNEXED 1
OPPOSITION/CROSS-MOTION 2
REPLY/OPPOSITION TO CROSS-MOTION 3
EXHIBITS Deft. 1-6
In a motion dated September 4, 2019, Defendant seeks, inter alia , to reargue the issues raised in her prior order to show cause to dismiss Plaintiff's cause of action pursuant to CPLR 2221. Defendant asserts that this court misapprehended issues of fact and law in its Decision/Order dated August 5, 2019 denying her order to show cause to dismiss the entire action.
Pursuant to CPLR 2221, "[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’ " ( Vanderbilt Brookland LLC v. Vanderbilt Myrtle, Inc. , 147 AD3d 1106 [2d Dept. 2017] [citation omitted] ).
Based on Defendant's claim that the court overlooked matters of fact and law, this court grants Defendant's motion to reargue, vacates its Decision/Order dated August 5, 2019 and issues this Decision and Order in its place which will reaffirm the court's prior ruling, but will address Defendant's claims in more detail.
In her affidavit in support of her order to show cause, Defendant sought to dismiss the entire action on the following grounds: "Documentary evidence, breach of good faith and fair dealing, misrepresentation/fraud, 22 NYCRR 1300.3; 22 NYCRR Part 137(3); prior arbitration award, CPLR 3211(a)(1) ; 3211(a)(5); 3211(a)(7)." Defendant also wrote "see attached" in reference to a Notice of Arbitration Award dated March 12, 2019 awarding judgment in her favor and "Prior Arbitration Award" as her good excuse/reason for seeking dismissal.
Defendant premised her argument on the fact that the matter was already decided in a Fee Dispute Arbitration and on a claim that the action was not timely commenced. Her Reply to Plaintiff's opposition sought to further support her motion on the grounds noted above. In his opposition to Defendant's order to show cause, Plaintiff successfully argued that he properly availed himself of a trial de novo remedy and timely commenced the action pursuant to 22 NYCRR 137.8. This section of the New York City Rules and Regulations allows Plaintiff, as the aggrieved party, an opportunity to challenge the arbitration award. Based on the parties' submissions and supporting documents, the court found that Plaintiff timely and properly availed himself of a trial de novo remedy. Hence, the court denied Defendant's order to show cause to dismiss the action and enforce the arbitration award.
In the instant motion, Defendant reargues the issue of timely commencement of the action but now premises the arguments upon her assumption that commencement of an action requires that service be completed and upon the new claim that this court lacks jurisdiction over the action because of a defect in service of the summons and complaint. Thus, Defendant claims that the court should have dismissed Plaintiff's complaint due to the expiration of the thirty (30) day statute of limitations and should have enforced the arbitration award pursuant to CPLR 7510.
Pursuant to 22 NYCRR 137.8, Plaintiff was required to commence an action seeking de novo review of the arbitration award within thirty (30) days of the mailing of the arbitration award. The record shows that Plaintiff timely filed his action on March 22, 2019, ten days after issuance of the arbitration award dated March 12, 2019. Pursuant to CPLR 304(a) an action is commenced by the filing of a summons and complaint with the clerk of the court ( DiSilvio v. Romanelli , 150 AD3d 1078 [2d Dept. 2017] ; O'Brien v. Contreras , 126 AD3d 168 [2d Dept. 2015]). Contrary to Defendant's arguments, a plain reading of CPLR 304(a) clearly shows that commencement of an action does not rely upon service of the summons and complaint. Indeed, CPLR 306-b mandates that as here, when the statute of limitations is four months or less, "service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires ," indicating that commencement of an action is independent of service (emphasis added). This court once again finds that Plaintiff timely and properly commenced this action.
The court will not entertain issues raised in this motion to reargue which were not raised in the order to show cause. Defendant's argument concerning lack of personal jurisdictional due to defective service of process was not part of her original motion. Defendant also improperly moves herein for summary judgment to dismiss Plaintiff's complaint. On a motion to reargue, the court "is limited to review of a court's ruling on a prior motion" ( Rice v. Rice , 135 AD3d 928 [2d Dept. 2016] ). Further, "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" (Matter of Anthony J. Carter, DDS, P.C. v. Carter , 81 AD3d 819 at 820 [2d Dept. 2011] [citations and internal quotations omitted] ).
Although Defendant did plead lack of personal jurisdiction due to a defect in service as an affirmative defense in her Answer, she did not raise this issue in her affidavit in support of her order to show cause or in her papers in reply. It is noted that Plaintiff mentioned service of process in his original opposition only as a matter of procedural history. At no time was Plaintiff given notice that Defendant sought dismissal of the case based upon improper service. Plaintiff was neither given an opportunity to argue the issue nor to cross move for affirmative relief. In reviewing a similar issue which arose in the context of a motion to renew, the Second Department in Blumstein v. Menaldino , 144 AD2d 412 (2d Dept. 1988), held that while the defendant did not raise an objection to personal jurisdiction in its original notice of motion or the supporting affirmations, plaintiff had not been prejudiced when the court considered it in a motion to renew. The court noted that plaintiff had an opportunity to respond to the defendant's objection and also had exercised the opportunity to respond to same in the underlying motion ( supra at 413 ; see also, In re Tognino , 87 AD3d 1153 [2d Dept. 2011] ). However, in the instant matter, Plaintiff is first presented with a lack of personal jurisdiction argument in this motion to reargue. It would not only be highly prejudicial to Plaintiff for the court to consider this but also improper to do so. Therefore, any issues relating to service or any matters not raised in the prior application are not considered herein.
While the court is cognizant that Plaintiff is representing herself and courts will routinely afford pro se litigants some latitude, "(a) litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive [opposing parties] of the same rights enjoyed by other [opposing parties]" ( Banushi v. Lambrakos , 305 AD2d 524 [2d Dept. 2003] ; Mirzoeff v. Nagar , 52 AD3d 789 [2d Dept. 2008] ; Shillingsford v. Geiss , 40 Misc 3d 129[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ). "A litigant who appears pro se does so at his or her own peril and acquires no greater right than that of any other litigant" ( Gounder v. Communicar, Inc. , 55 Misc 3d 146(A) [App Term, 2nd, 11th and 13th Judicial Dists. 2017]; Roundtree v. Singh , 143 AD2d 995 [2d Dept. 1988] ).
Accordingly, the court's Decision/Order dated August 5, 2019 is vacated and this Decision and Order stands in its place.
This constitutes the decision and order of this court.