Opinion
Motin Seq.: 002 Index No. 115899/2010
07-01-2011
DAVID OSTWALD, as Executor of the Estates of MARTIN OSTWALD and LORE OSTWALD, Plaintiffs, v. DAVID H. OSTWALD and KERSTEN OSTWALD, Defendant.
At the Matrlmonial Term, Part 20, of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse thereof, 60 Centre Street, New York, New York, on the 29th day of June, 2011
PRESENT: HON.
Decision and Order
Recitation as required by C.P.L.R, 2219(a), of the papers considered in the review ___ Defendant's Notice of Motion to, inter alia, rearguc and renew this Court's order dated March 1, 2011, and, upon reargument, to vacate the notice of discontinuance and dismiss the action.
| Papers | Numbered |
| Defendant's Notice of Motion and Exhibits; | 1-6, 1-15 |
| Plaintiff's Affirmation, in Opposition and Exhibits: | 1-10 |
| Defendant's Reply Affirmatioin: | 1-12 |
In this estate action to recover for repayment of a loan, defendant Kersten Ostwald seeks leave to reargue and renew this Court's order dated February 28, 2011, which denied as moot her application to both dismiss the plaintiff's complaint against her with prejudice and to grant her an award of attorney's fees and sanctins, since plaintiff filed a notice of discontinuance. If defendant's application to reargue and renew is granted, she also requests the Court 1) vacate the notice of discontinuance; 2) treat the dismissal motion as-one for summary judgment pursuant jo. CPLR3211 (c); 3) dismiss the action with prejudice pursuant to CPLR 3211(a)(1) and (a)(5) due to. documentary evidence and the expiration of the statute of limitations; and, 4) for an award of counsel Fees and sanctions, Alternatively, requests that the Court consolidate this action with the pending matrimonial action under index Number 310357/2008, David H. Ostwald v. Kersten Ostwald. Plaintiff David H. Oslwald opposes the motion,
This action was commenced by the service of a summons and complaint on December 10, 2010, and seeks repayment of a loan. Plaintiff David H. Ostwald is the executor of the estates of the decedent-plaintiffs, his parents, Martin Ostwald.and Lore Ostwald, and he also is named as a defendant in this action with Ins wife, Kersten Ostwald. Martin and Lore Ostwald both passed away, respectively, on April 10, 2010 and May 14, 2010. The complaint alleges that the decedents loaned the sum of $150,000 to their son and his wife oh or about March 1, 1994. The complaint also alleges that the structure of the loan agreement was confirmed in a letter from; the decedents; to the. defendants, dated March 9, 1994, which acknowledged the oral loan. agreement and simultancously agreed to forgive $30,000 of the total debt, reducing the outstanding balance owed by defendants to $120,000. The letter is not signed by defendants) but only by the decedents, and it states that the loan is repayable upon demand. The complaint further alleges that David, as executor of the wills of the decedents, made a demand upon himself and Ms. Ostwald for repayment of the loan, and defendants have refused to pay.
On or about January 5, 2011,defendant Kersten Ostwald served and fileda motion to dismiss the underlying action and, following a stipulation to extend the time to respond, plaintiff filed a notice of discontinuance on February 18, 2011. Accordingly, on February 28, 2011, the Court denied the motin to dismiss as moot, stating "[t]he parties by stipulation have discontinued this action." Thereafter, the instant appliention ensured.
A motion for leave to reargues, pursuant to CPLR 2221, is addressed to the sound discretion of the court, and may be granted only upon a showing that the court overlooked or misapprebended any relevant facts or mispplied any controlling principles of law inits earlier decision (CPLR 2221 [d] [2]; Beveroage Mkrg. USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d 657 [2d Dept 2009]; see also Foley v Roche, 68 AD2d 558 [1st Dept 1979]). "' Amotion for leave to renew must be "bused upon new facts not offered on the prior motion that would change the prior determination"'" (Prinz v New York State Electric and Gas, 82 Ad3d 1199, 1199 [2d Dept 20111], quoting Jackson Heights Cave Center, LLC v Bloch, 39 AD3d 477, 480 [2d Dept 2007], quoting CPLR 2221 [e] [2]). It also must state a "'reasonable justification for the failure to present such facts on the prior motion'" (Renna v Gullo, 19 AD3d 472 [2d Dept 2005] [citations omitted]).
Here, the defendant argues that renewal is appropriate based oon the Court's mistaken belief and misapprehension of a relevant fact, i.e., that the parties had stipulated to discontine the action when the had not in fact done so, Rather, the plaintiff had unilaterally Filed the Notice of Discontinuance in an untimely manner, according to the defendant.
Pursuant to CPLR 3217(a)(1):
any party asserting a claim may discontinue it without an order by serving upon all parties to the action a notice of discontinuance at any tie before a responsive pleading is served or whithn twenty days after service of the pleading asserting the claim, whichever is earlier, and filing the notice with proof of service with the clerk of the court.This is in contrast to CPLR 3217(a)(2) which allows for attorneys of record for all parties to discontinue at any time, before the case is submitted to the Court or jury, by stipulation. Here, the order of February 28, 2011 provides that the parties discontinued by stipulation, but in actuality, it was by notice of discontinuance As this fact was incorrect in the original order, the Court grants reargument of the order of February 28, 2011.
Upon reargument, the Court notes that the complain was served and filed in this action on December 10, 2010, .and the notice of discontinuance was filed on February 18, 2011. Hence, under GPLR 3217(a)(1), a notice of discontinuance may only be filed within 20 days after the complaint was served; or by December 30, 2010, since this is the earlier of the two possible dates provided for by the statute, Mr. Ostwald argues that the motion to dismiss and subsequent st:ipuIations extending the briefing schedule on the motion extended the time to discontinue by notice. However,plaintiff's right to discontinue an action is based upon both serving a pleading and honoring the time frames of CPLR 3217(a), Giambrone v. Giambrone, 140 AD2d 206 (1st Dept. 1988). Accordingly, plaintiffs notice of discontinuance was untimely, and is vacated.
Turning to defendant's motion to dismiss plaintiff argues that the Court's sole inquiry on a motion pursuant to CPLR 3211(a)(7) should be whether the factsalieged in the .complaint fit within any cognizable legal theory, and not whether there is evidentiary support for the complaint. However, defendant's motion is not one to dismiss for failure to state a cause of action as plaintiff alleges, but rather to dismiss due to the expiration of the statute of limitations, pursuant to CPLR 3211(a)(5). Specifically, Ms. Ostwald argues that the action. should be dismissed as violative of the statute of limitations, as the loan—if; in fact, the $120,000 given to her and the plaintiff was a loan-was given over seventeen years ago, and' the decedents never Made a demand for payment. Further, she alleges that slip never received a copy of the March 9", 1994 letter until approximately two years ago, upon the commencement of the pending matrimonial action between, the defendants. Plaintiff opposilion, argues that the statute of limitations may be tolled by written- acknowledgment of an existing debt, or by partial payment of the debt. However, he addupes.no evidence that either method of tolling the statute of limitations exists here.
It should be noted that Ms. Ostwald avers that the decedents referred to the loan as a gift and that no promissory note was ever signed.
Regarding motions to dismiss tor the expiration of the statute of limitations, the First Department recently rejected an argument that "unless the court gives CPLR 3211(e) notice of its intention to do so, it may not consider non-documenlary evidentiary materials for fact-finding purposes on a motion to dismiss pursuant to CPLR 3211(a)(5)." Suss v. New York Media, 69 AD3d 411, (1st Dept. 2010). Therefore, the Cpurt will consider the evidence proffered by the defendant support of her motion to dismiss beased on a statute of limitations violation.
Pursuant to Uniform Commercial Code § 3-122, a lawsuit on a loan repayable On demand must be commenced within six (6) years from the dale of the note or the date it was issued. The statute of limitations to recover on a promissory note is also six (6) years. CPLR § 213(2). Here, even assuming, arguendo, that there was a valid and enforceable loan agreement as evidenced by the March 9, 1994 letter, the loan was issued over seventeen years ago. and the statute of limitations has expired. Plaintiff has raised no triable issue as to whether there has been partial payment or written acknowledgment of the debt to loll the statutory period. See Schleifer v. Schlass, 303 AD2d 204(1st 2003). Therefore, present action is dismissed with prejudice, pursuant 3211 (a)(5).
Defendant also asks this Court 10 treat her dismissal motion as one for summary judgment. Upon review of the parties' submissions, the parties have laid bare their proof and have charted a summary judgment course. See Rich v. Lefkovits, 56 NY2d, 276.(1982); Schultz v. Estate of Sloan, 20 AD3d 520 (2d Dept, 2005); Singer v. Boychuk, 194 AD2d 1049 (3d Dept, 1993). As such, the. Court will treat the motion as one for summary judgment.
In the first ibstance, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as matter of law, adducing sufficient evidence to eliminate any material issue of fact. See, Alvarez v. Prospect Hasp., 68 NY2d 320 (1986). The burden then shifts to the party opposing the motion who must submit proof in admissible form sufficient to require a trial of the material issues of fact. See Roth v. Barreto, 289 AD2d 557 (2d Dept. 2001), Mere conclusions arid unsubstantiated allegations are insufficient to raise any triable issues of fact. See Zuckerman v. City of New York, 49 NY2d 557 (1980). Merc, the defendant, has made a prima ,facie showing that she is entitled to a judgment as a matter of law, based on the evidence" that the statute of limitations on any loan repayment application has elapsed, and the plaintiff has failed to raise any triable issue of fact. Accordingly, the defendant's motion for Summary judgment is granted.
Lastly, defendant, seeks an award .of attorney's fees: and an imposition of sanctions; in connection with the instant application. Defendant alleges that the present action was motivated by a desire to harass her, and that the instant action is frivolous. Conduct is frivolous if the contentions are "completely without merit in law or fact and cannot be supported by a. reasonable argument for an extension, modification, or reversal of existmglaw, or is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another." 22 NYCRR 130-1.1(c). Here, the conduct of plaintiff and his counsel do not reach the high standard necessary to impose sanctions.
Therefore, upon the facts presented and the applicable law, if is hereby:
ORDERED, that defendant's motion for reargument of the Feb. 28, 2011 order of this Court is granted and it is further
ORDERED, that upon reargument, defendant's, motion to vacate the notice of discontinuance is granted, and it is further
ORDERED, that defendant's motion to dismiss the action for the expiration of the statute of limiations is granted, and the action is dimissied with prejudice,and is further
ORDERED, that defendant's motion to consolidate this action with the pending matrimonial action is denied as moot, and it is further
ORDERED, that defendant's application for an award of attorney's fecs and an imposition of sanctions is denied, and it is further
ORDERED, that counsel for the denfendant is directed to serve the within order, with Notice of Entry, within ten (10) days of entry, upon counsel for the plaintiff.
This constitutes the Decision and Order of the Court.
ENTER:
_____________
HON. DEBORAH A. KAPLAN
J.S.C.