Memeh v. SPA 88 LLC

Full title: CHINYERE MEMEH, Plaintiff, v. SPA 88 LLC, Defendant. Motion Seq. No. 002

Court: Supreme Court of New York

Date published: Nov 5, 2021

2021 N.Y. Slip Op. 32145 (N.Y. Sup. Ct. 2021)

Opinion

Index 158887/2019

11-05-2021

CHINYERE MEMEH, Plaintiff, v. SPA 88 LLC, Defendant. Motion Seq. No. 002

HON. PHILLIP HOM, J.S.C.

Unpublished Opinion

DECISION + ORDER ON MOTION

HON. PHILLIP HOM, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

Upon the foregoing papers, it is ORDERED that the branch of the motion seeking an order granting the NYPD leave to reargue the Short Form Order of this Court dated April 22, 2021 (NYSCEF Doc. No. 26) on the grounds that the Court overlooked or misapprehended the law is granted.

Upon reargument, the underlying motion by Defendant Spa 88 LLC, for an order compelling the production of redacted records or for an in camera review of sealed records by the Court under CPL §160.50 is denied.

It is further ORDERED that the branch of the motion under CPLR §5015, seeking an order vacating the Short Form Order of this Court dated April 22, 2021 (NYSCEF Doc. No. 26) which ordered the NYPD to send certain sealed records for an in camera review, is denied as academic.

Background

Plaintiff alleges that she was sexually assaulted at Defendant Spa 88 LLC ("Spa 88") when she was invited to a massage room by a patron pretending to be a staff member (NYSCEF Doc. No. 1 p. 4). She is suing Spa 88 for negligence, among other causes of action. Defendant Spa 88 moved for an order compelling production of redacted New York City Police Department records, or for an in camera review of the records by the Court (NYSCEF Doc. No. 17 Motion Sequence Number 1). The Court held a virtual conference and on April 22, 2021 issued an order stating in relevant part: "it is ORDERED that the New York City Police Department send the sealed records in Arrest Number Ml8654339 and Case No. 2018 NY 041603 to the undersigned for an in camera review by overnight mail." This motion by NYPD ensued.

CPL §160.50

Defendant Spa 88 is seeking an order unsealing records of a criminal action which was terminated in favor of the accused. CPL §160.50 (1) reads in relevant part that:

Upon the termination of a criminal action or proceeding against a person in favor of such person.. .unless the district attorney upon motion or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion .. .determines that the interest of justice require otherwise.. .the record of such action or proceeding shall be sealed."

CPL §650 (1)(c) states that "all official records and papers.. .relating to the arrest or prosecution... shall be sealed and not made available to any person or public or private agency."

Reargument

A motion for reargument allows a party to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion (See CPLR 2221[d][2]; see also Delgrosso v 1325 Limited Partnership, 306 A.D.2d 241 [2d Dept. 2003]); Foley v Roche, 68 A.D.2d 558 [1^st Dept. 1979] app denied by 56 N.Y.2d 507 [1982]). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided or to present arguments different from those originally presented. (See Gellert & Rodner v Gem Community Management, Inc., 20 A.D.3d 388 [2d Dept. 2005]; see also McGill v Goldman, 261 A.D.2d 593 [2d Dept. 1999]; Foley v Roche, supra).

Upon reargument, Defendant Spa 88's motion to compel the production of redacted records or for an in camera review of sealed records by this Court under CPL § 160.50 is denied. The Court finds based upon the record herein that it misapplied the law controlling the unsealing of records under CPL §650. Defendant Spa 88 is not "among the specific parties or institutions listed in CPL 160.50 (1)(d) as entitled to obtain a copy of a sealed criminal record, and also because" this Court "did not have jurisdiction over the criminal matter (Lauricella v Tanya Towers, Inc., 8 A.D.3d 153, 153 [1^st Dept 2004]) citing Wilson v City of New York, 240 A.D.2d 266, 2671 ^st Dept 1997]). Therefore, upon reargument this Court recalls and vacates its prior order granting an in camera review of the sealed records and in its stead finds as follows:

Upon the foregoing papers and after oral argument it is ORDERED that the motion is denied in its entirety for the reasons stated in the preceding paragraph.

Conclusion

Based on the foregoing it is ORDERED that the branch of Motion Sequence Number 2 seeking reargument of Motion Sequence Number 1 is granted and upon reargument the motion is denied in its entirety.

It is further ORDERED that the branch of the motion seeking an order vacating the decision on Motion Sequence Number 1 is denied as academic.