Studio A Showroom, LLC v. Yoon

Full title: STUDIO A SHOWROOM, LLC Plaintiff, v. DAVID YOON and YOONY CORP. HOLDINGS…

Court: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 49

Date published: Nov 4, 2011

2011 N.Y. Slip Op. 33970 (N.Y. Sup. Ct. 2011)

Opinion

Index No. 650806/2010

11-04-2011

STUDIO A SHOWROOM, LLC Plaintiff, v. DAVID YOON and YOONY CORP. HOLDINGS, both individually and d/b/a/ THE ADDISON STORY, Defendants.

O. PETER SHERWOOD

DECISION AND

ORDER

Hon. O. Peter Sherwood, J.

After oral argument held on May 10, 2011, the court issued a decision on the record which granted summary judgment in defendants' favor dismissing all causes of action alleged in the complaint with the exception of the first cause of action. That cause of action was deemed to be a demand for payment of commissions earned prior to termination of the agreement. The surviving claim was severed and continued. Thereafter, the court issued a written decision and order, dated May 17, 2011 memorializing the decision rendered on the record. Although the court stated that there was an issue of fact as to whether or not a termination/integration clause in the parties' agreement had been stricken at the time defendant, David Yoon, signed the contact on behalf of the manufacturer, corporate defendant, Yoony Corp. Holdings, and whether the manufacturer ever agreed to the change, the court dismissed the fourth and fifth causes of action for breach of contract upon its finding that Yoon had communicated to plaintiff's principal, Aaron Zoref, the manufacturer's desire to terminate the contract pursuant to the 30-day notice clause and Zoref agreed to the termination in an exchange of e-mails. Plaintiff now moves to renew and reargue pursuant to CPLR 2221. For the reasons stated on the record on November 1, 2011, the motion is denied.

In its supporting arguments on the motion, plaintiff does not specifically challenge the court's dismissal of the complaint against the individual defendant, David Yoon, or dismissal of (a) the second cause of action for quantum meruit, (b) the third cause of action for unjust enrichment, and (c) the fifth cause of action for breach of contract with respect to a confidentiality provision in the party's agreement. Instead, its arguments center on the fourth cause of action for breach of contract.

In support of that branch of the motion as seeks reargument, plaintiff contends that as the non-moving party, the court must accept its pleadings and papers as true. Plaintiff maintains that the court must credit its claim that the contract between the parties was for a specific duration and not terminable and, further, that the silence of plaintiff's principal in response to defendants' letter of termination of the agreement did not constitute an acceptance of the termination.

In support of renewal, plaintiff furnishes e-mails between the parties which were not submitted in opposition to defendants' summary judgment motion and are dated June 9, 2010 and June 11, 2010. Plaintiff contends that the e-mails refute defendants' letter of termination and defendants' ability to terminate the Agreement. Plaintiff avers that it did not previously furnish the e-mails to the court as the central issue was whether the termination/integration clause had been stricken from the agreement, not whether plaintiff had accepted defendants' termination of the agreement. Plaintiff contends that it accepted defendants' termination of the parties' agency relationship, but did not accept defendants' attempt to unilaterally terminate the parties' contract. Defendants contend that the e-mails were available at the time of the earlier motion and may not be considered now.

DISCUSSION

The standard for reargument is well settled. A motion for reargument must be based upon facts or law overlooked or misapprehended by the court on the prior decision (see CPLR § 2221(d); Mendez v Queens Plumbing Supply, Inc., 39 AD3d 260 [1^st Dept 2007]; Carillo v Realty Group, 16 AD3d 611 [2d Dept 2005]). Reargument is not a proper vehicle for new issues that could have been, but were not raised on the prior motion or to conduct a rehash of arguments previously raised and considered (see People v D'Alessandro, 13 NY3d 216, 219 [2009]; Tounkara v Fernicola, 63 AD3d 648, 649 [1^st Dept 2009]; Lee v Consolidated Edison Co. of N.Y., 40 AD3d 481, 482 [1^st Dept 2007]).

A motion for leave to renew must be based on evidence establishing "new facts not offered on the prior motion that would change the prior determination"(CPLR § 2221 [e] [2]), as well as "reasonable justification" for not offering these facts previously (CPLR § 2221 [e] [3]; CLP Leasing Co. v Nessen, 27 AD3d 291, 292 [1^st Dept 2006]) "Nevertheless, '[a] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Allstate Ins. Co. v Liberty Mut. Ins. Co., 58 AD3d 727, 728 [2d Dept 2009], quoting Elder v Elder, 21 AD3d 1055 [2d Dept 2005]).

The arguments raised on the motion are not new. The new e-mails do not provide support for a change in the court's determination. The issue of whether plaintiff accepted defendants' termination of the parties' agreement was previously argued and rejected by the court.

It is

ORDERED that the motion to renew is denied; and it is further

ORDERED that the motion for leave to reargue is denied.

ENTER,

_______________

O. PETER SHERWOOD

J.S.C.