2952 Victory Blvd. Pump Corp. v. Bhatty, Index No.: 151082/2018
| Decision Date | 06 March 2019 |
| Docket Number | Index No.: 151082/2018 |
| Citation | 2019 NY Slip Op 31170 (U) |
| Parties | 2952 VICTORY BLVD. PUMP CORP. Plaintiff, v. ABRAR ALI BHATTY, FARIHA BHATTY, LARRY BLOOM, THOMAS BALZANO, LOUISE BALZANO, CARMINE MAZZA, MAUREEN MAZZA, ROBERT PACIFICI, And ANGLIKI GIORDANO Defendants. |
| Court | New York Supreme Court |
HON. ORLANDO MARRAZZO, JR.
On October 22, 2018, this Court granted Defendants' Motion to Dismiss the Complaint in the instant action. Plaintiff now moves this Court for an Order granting the parties leave to reargue and renew Defendants' Motion to Dismiss the Complaint. The Court hereby denies Plaintiff's current Motion for leave to reargue and renew.
This action concerns the payment of sewage pumping fees that Plaintiff claims are owed to it by Defendants for the period of October 16, 2013 to December 31, 2017. Based on the claims of unjust enrichment and/or implied agreement, Plaintiff asserted that it owns a sewage pumping station located at 2952 Victory Boulevard, Staten Island NY that services homes owned by each of the Defendants. This Court dismissed Plaintiff's claims based on a prior decision made by the Honorable Joseph J. Maltese dated December 1, 2004 captioned under Conigliaro et al., v. 2952 Victory Blvd. Pump. Corp., Index No. 12268/2004. The Court provided a summary of this action in its previous decision and summarizes the same facts for this current Motion.
In the Conigliaro action, homeowners sought to determine that plaintiff's right to collect the same "sewage pumping fees" that the Plaintiff seeks to recover in the present action. It was Judge Maltese's ruling that the plaintiff could not collect pumping service fees until the 2952 Victory Blvd. Pump. Corp. adhered to the requirements listed in the court's order. The Court in Conigliaro determined that Trailway Associates, the previous pump station owners, abandoned the pumping station and voided its covenants with the property owners pursuant to the covenant language. According to Judge Maltese, the covenants between 2952 Victory Blvd. Pump. Corp. and the homeowners were unenforceable since 2952 Victory Blvd. Pump. Corp. is not a direct successor to Trailway Associates, who was the original party to the covenants. The Court held that the covenants with the property were terminated and that 2952 Victory Blvd. Pump. Corp. needed to obtain approval of its rates from the New York City Water Board. As this Court noted in its decision, a letter dated June 5, 2014 from the New York City Water Board states that the New York City Water Board did not have the authority to review or approve the rates of the 2952 Victory Blvd. Pump. Corp.
In this Court's Decision, the Court noted that the Certificate of Occupancy submitted by Plaintiff did not satisfy Judge Maltese's directives. The Court held that according to the Referee's Deed, A&F Realty Holding, LLC is the only owner of the premises for which the certificate was issued. This Court further held that the Certificate of Occupancy submitted by Plaintiff was unrelated to Plaintiff's alleged property since it was issued for 2940 Victory Boulevard and not 2952 Victory Boulevard, which is the address of the premises conveyed under the Referee's Deed and where the sewage pumping station is located. Based on these findings, the Court dismissed this action without prejudice and noted that the Plaintiff could seek its cause of action based on full compliance with all the requirements of Judge Maltese's prior ruling in the Conigliaro decision.
Plaintiff now seeks leave to reargue and renew the Defendants' Motion to dismiss the complaint pursuant to CPLR §3211(a)(5). Plaintiff claims that the Court's conclusions in its Decision were based on facts determined in error. According to the Plaintiff, the Certificate of Occupancy was not issued to the property's specific owner, but rather the premises itself. Plaintiff further argues that the property known as Block 2072 Tax Lot 55 is known as 2940 Victory Boulevard and that it is the Referee's Deed that incorrectly references the property as 2952 Victory Boulevard. The Plaintiff claims that the Court's determination was not supported by evidence, that a triable issue of fact exists and a letter from the office of the Borough President of Staten Island ("Borough President Letter") confirms that the right address for Tax Block 2072 Tax Lot 55 is 2940 Victory Boulevard.
Defendants argue that when it rendered its Decision granting dismissal, this Court did consider the legal ownership of the property where the pumping station is located and the arguments currently made by the Plaintiff. According to the Defendants, the Court shoulddisregard the Borough President Letter that Plaintiff submits in support of its current Motion because such was not submitted in opposition to the Defendants' prior Motion to Dismiss. Plaintiff allegedly still does not claim that it otherwise complied with all the other terms and conditions set forth in Judge Maltese's Decision in Conigliaro. Finally, Defendants argue that the Plaintiff has not offered any new facts in support of its motion and the only "new" fact proffered was raised by Plaintiff in opposition to Defendants' Motion to Dismiss and was rejected by the Court. Defendants emphasize that Plaintiff also has not offered a reasonable justification for its failure to submit the Borough President Letter or the Affidavit of Willy Yuin, except that Plaintiff states such documents were not in its possession at the time of Defendants' Motion.
It is without question that ". . . 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." Matter of Anthony J. Carter, D.D.S., P.C. v. Carter, 81 A.D.3d 819, 820, 916 N.Y.S. 821 (App. Div. 2d Dept., 2011). See Rodriguez v Gutierrez, 138 A.D.3d 964, 967, 31 N.Y.S.3d 97, 100 (App. Div. 2d Dept., 2016). The Second Department has consistently held that "motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law." Singleton v. Lenox Hill Hosp., 61 A.D.3d 956, 957, 876 N.Y.S.2d 909, 910 (App. Div. 2d Dept., 2009) (quoting Carrillo v. PM Realty Group, 16 A.D.3d 611, 611, 793 N.Y.S.2d 69 (App. Div. 2d Dept., 2005)). See CPLR 2221(d). The Second Department has held a motion for leave to reargue "shall not include any matters of fact not offered on the prior motion." Ahmed v. Pannone, 116 A.D.3d 802, 805, 984N.Y.S.2d 104, 107 (N.Y. App. Div. 2d Dept., 2014) (quoting Grimm v. Baiely, 105 A.D.3d 793, 704, 963 N.Y.S.2d 277 (App. Div. 2d Dept., 2013)).
The Court finds that it did not overlook or misapprehend the facts...
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