Opinion
INDEX NO. 507014/2018
03-26-2019
CHRISTIAN JOHN WOODCOCK, Individually and Derivatively, Plaintiff, v. ROBBY H. BIRNBAUM AND GREENSPOON MARDER, LLP., Defendants, And UNITED CREDIT SOLUTIONS, INC.
NYSCEF DOC. NO. 84 Decision and order MS # 2 PRESENT: HON. LEON RUCHELSMAN
The defendants Robby Birnbaum and Greenspoon Marder LLP have moved pursuant to CPLR §2221 seeking to reargue a portion of a decision and order dated November 7, 2018 denying a motion to dismiss the complaint. The plaintiff has oppose the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments, this court now makes the following determination.
As recorded in the prior order, this lawsuit was filed by the plaintiff against the defendants wherein the complaint alleges four causes of action. The first two allegations are that GM and Robbie Birnbaum, the GM attorney who dealt with Woodcock in another matter, breached their fiduciary duties and duties of loyalty to Woodock derivatively and Woodcock personally. The third and fourth causes of action allege GM and Birnbaum violated Judiciary Law §487 to Woodcock derivatively and personally.
The court denied the defendant's motion seeking to dismiss the lawsuit on the grounds that defendant Birnbaum had no connection with the State of New York sufficient for the court to assert any personal jurisdiction over him. Specifically, the court held that jurisdiction was proper since there was evidence that GM acted as Birnbaum's agent, thus Birnbaum transacted business in New York.
Birnbaum now moves to reargue that determination and notes that GM did not even open a New York office until April 2016, therefore, GM could not have acted as his agent and could not have expected to be subject to New York courts.
Conclusions of Law
A motion to reargue which is not based upon new proof or evidence may be granted upon the showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision (Delcrete Corp. v. Kling, 67 AD2d 1099, 415 NYS2d 148 [4th Dept., 1979]). Thus, the party must demonstrate that the judge must have overlooked some point of law or fact and consequently made a decision in error. Its purpose is designed to afford an opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied a controlling principle of law.
The basis upon which the court concluded there were questions of fact whether Birnbaum can be subject to jurisdiction in New York was based solely on the fact he was a partner in GM and that GM conducted business in New York. Birnbaum has presented evidence which has not been refuted that indeed, at the time of the transactions GM did not maintain an office in New York. The plaintiff elides this crucial fact by noting that "not only did a GM lawyer appear in New York Courts after that time, Birnbaum and GM currently maintain offices in New York as a partnership and therefore subject to this Court's jurisdiction" (see, Memorandum in Opposition, page 5). It is true, as the court held, that if GM maintained an office in New York there would certainly be questions whether they were acting as Birnbaum's agent. However, if no office existed at that time, then GM could not be an agent and Birnbaum could not be subject to jurisdiction in New York. The fact Gm opened an office at a later date has no bearing on Birnbaum's actions which took place beforehand. Moreover, there are no other actions of Birnbaum that he conducted on his own sufficient to confer jurisdiction.
Lastly, this motion is proper. The precise date when GM opened an office in New York was not argued previously and the defendants could not have been aware that such information was crucial or even necessary.
Therefore, based on the foregoing the motion seeking reargument is granted. Upon reargument the motion seeking to dismiss the complaint for lack of jurisdiction is consequently granted.
So ordered. DATED: March 26, 2019
Brooklyn N.Y.
ENTER:
/s/_________
Hon. Leon Ruchelsman
JSC