Opinion
6474/2011
02-28-2012
Mohammed Motiur Rahman and FAROUKH UDDIN, both suing as Shareholders of BENGAL POULTRY INC. v. Bengal Poultry Inc., MOHAMMED HALIM UDDIN AHMED, and ASAB UDDIN
For the Plaintiffs:Richard G. Johnson, Esq. For the Defendants: Michael F. Mongelli II, P.C., by Martin C. Chow, Esq.
Appearances of Counsel:
For the Plaintiffs:Richard G. Johnson, Esq.
For the Defendants: Michael F. Mongelli II, P.C., by Martin C. Chow, Esq.
Charles J. Markey, J.
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 [1979]). 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 [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.
This Court, in its order of September 1, 2011, determined that the motion for permanent injunctive relief was improperly made in the first instance, and that plaintiffs had failed to establish that they were entitled to injunctive relief. Plaintiffs herein do not allege that the court overlooked or misapprehended any matters of fact or law in deciding the prior motion.
Rather, plaintiffs's counsel merely asserts that the court should reconsider the arguments previously raised, and grant the relief sought. Contrary to counsel's assertions the Court was aware of the arguments raised in the original application, and no basis exists for granting leave to reargue. 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.
Accordingly, plaintiffs' motion for leave to reargue is denied.
The foregoing constitutes the decision, opinion, and order of the Court.
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J.S.C.