Opinion
Index No. L&T 313599-22
11-17-2023
Westbury Flats LLC., Petitioner, v. Jean B. Larose, Respondent, "John" "Doe" "Jane" "Doe," Respondent(s).
Unpublished Opinion
Hannah Cohen, J.H.C.
Recitation, as required by CPLR 2219(a), of the papers considered in review of petitioner's motion to vacate its default and seek discovery and or to renew and reargue and ensuing opposition.
Papers Numbered
Motion 1
Opposition 2
Upon the foregoing cited papers, the Decision and Order on the motion is as follows:
Petitioner commenced this licensee holdover proceeding seeking possession of the premises in June 2022. Jean Berthaud Larose, grandson of the late tenant of record appeared with counsel in September 2022 and in October sought to file a late answer which included the affirmative defense of succession. Said motion was granted and an answer was filed in November 2022. The case was adjourned several times in which respondent voluntarily provided documentation to support his succession claim. In May 2023 respondent by motion sought summary judgment. The motion was adjourned for additional succession documents to be provided to petitioner and then again to June 14, 2023, July 19, 2023 and then August 7, 2023 for opposition. When no opposition was filed the motion was marked submitted. On August 10, 2023, the court having not received written opposition to the motion despite several adjournments, granted summary judgment for the respondent and found that respondent proved succession and dismissed the petition.
Petitioner on October 24, 2023 by motion sought to vacate its default in not responding to respondent's summary judgment motion timely, arguing that petitioner was waiting for an investigative report which petitioner just received on July 28, 2023 from Charles Eric Gordon Esq, investigative counsel, which disputes respondents claim of succession and enclosed said letter. Petitioner also submits an affidavit from the superintendent who disputes the validity of respondent's succession claim. Petitioner argues that pursuant to CPLR 5015, petitioner demonstrates an excusable default and a meritorious claim. Alternatively petitioner seeks to reargue this courts decision pursuant to CPLR 2221(d) and renew CPLR 2221(e) and that based upon the new facts presented in the investigative letter which were not available at the time the decision was made, the new information would lead the court to change its determination. Petitioner's attorney also argues that even if said facts were known to petitioner earlier, in the interest of justice the court should grant reargument and or renewal, vacate its finding and grant petitioner's motion for discovery.
Petitioner presented a letter dated July 28, 2023 from investigative counsel which indicates based upon its investigation that respondent was not associated with the premises for the requisite time period in order to be granted succession. Petitioner likewise presents an affidavit from the superintendant noting that respondent only started living with his grandfather shortly before his death.In opposition respondent notes there is no basis for petitioner's failure to oppose the motion. Respondent notes that there was no law office error, that said investigative letter is dated July 28, 2023 and that petitioner could have opposed the motion with this evidence or with the superintendents affidavit, but failed to do so timely despite numerous stipulations of adjournments. Respondent argues that respondent has proven succession with the multiple evidence presented in its motion for summary judgement and the court should deny respondents motion in its entirety.
To vacate petitioner's default in opposing respondents motion for summary judgment, the petitioner is required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d 936, 936, 946 N.Y.S.2d 491; Walker v. Mohammed, 90 A.D.3d 1034, 1034, 934 N.Y.S.2d 854; Roche v. City of New York, 88 A.D.3d 978, 979, 931 N.Y.S.2d 533; Casali v. Cyran, 84 A.D.3d 711, 711, 921 N.Y.S.2d 879; Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). Whether an excuse is reasonable is a determination within the sound discretion of the Court (see Walker v. Mohammed, 90 A.D.3d at 1034, 934 N.Y.S.2d 854; SS Constantine & Helen's Romanian Orthodox Church of Am. v. Z. Zindel, Inc., 44 A.D.3d 744, 745, 843 N.Y.S.2d 414), and the Court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a" 'detailed and credible'" explanation of the default at issue (Swensen v. MV Transp., Inc., 89 A.D.3d 924, 925, 933 N.Y.S.2d 96, quoting Henry v. Kuveke, 9 A.D.3d 476, 479, 781 N.Y.S.2d 114).
Here, petitioner's arguments that it was waiting for the results of an investigative report in order to oppose the summary judgment motion is unavailing. The court notes the report is dated July 28, 2023, a full week and a half before the court issued its decision on August 10, 2023. Additionally, petitioner could have submitted an affidavit from the petitioner and or the super in order to defeat the summary judgment and demonstrate any issues of fact. Petitioner failed to oppose the motion for three months. The court declines to find that petitioner has failed to offer a reasonable excuse for its default and thus declines to vacate petitioner's default. As petitioner failed to demonstrate a reasonable excuse for its default, it is unnecessary to determine whether there is a demonstrated existence of a potentially meritorious opposition to the motion (see generally Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 790, 921 N.Y.S.2d 643; HSBC Bank USA, N.A. v. Roldan, 80 A.D.3d 566, 567, 914 N.Y.S.2d 647; see also Tsikotis v. Pioneer Bldg. Corp., 96 A.D.3d at 936, 946 N.Y.S.2d 491).
The Court furthermore declines petitioners motion to reargue and or renew as the court neither misapplied or misapprehended the law. See CPLR 2221[d][2] Frenchman v Lynch, 97 A.D.3d 632 [2nd Dept 2012]. Re argument is not designed to afford an unsuccessful party with successive opportunities to reargue issues previously decided or to present arguments different from those originally presented (see Matter of Setters v All Props & Development (USA) Corp, 139 A.D.3d 492 [1st Dept 2016]).
Petitioner's motion in all aspects is denied.
This constitutes the decision and order of this court.