All Am. Moving v. Andrews

• Decision Date: 19 April 2011
• Docket Number: 21995-2005
• Parties: All American Moving and Storage, Inc. and Metropolitan Security & Storage, Ltd., Plaintiffs, v. W. Reilly Andrews, Mary Fernandez, at al., Defendants. Kim Jobb and Consuelo Jobb, Third-Party Plaintiffs, v. Jerome Ackerman, et al.,Third-Party Defendants. Matthew Pierson, Third-Party Plaintiff, v. Jerome Ackerman, et al.,Third-Party Defendants. Henry Wilder, Mona Wilder, Gladys Rivera a/k/a Gladys Martinez, Sharon Held and Carlton White, Third-Party Plaintiffs, v. Jerome Ackerman, et al.,Third-Party Defendants. Baker International Insurance Co., et al., Third-Party Plaintiffs, v. Jerome Ackerman, et al.,Third-Party Defendants. Centurion Marketing, Inc., et al., Plaintiffs, v. Jerome Ackerman, et al.,Third-Party Defendants. Jerome Ackerman, Barbara Ackerman, Gary Ackerman, and Irwin Ackerman a/k/a Ramp Property Company, Plaintiffs, v. D'Agostino Supermarkets, Inc., et al Defendants. The Charter Oak Fire Insurance Company a/s/o Heating and Burning Supply Inc., 479 Walton LLC, and Andrew Nitze, et al., Plaintiffs, v. Ramp Property Company, et al., Defendants. Peter Wolff, Plaintiff, v. Jerome Ackerman, et al.,Third-Party Defendants. Geogette Bardowell, Plaintiff, v. Ramp Property Company, et al.,Defendant. BA Ba Auto Repair, INC., Plaintiff, v. Metropolitan Security & Storage, Ltd.,Defendant. Philip Seldon, Plaintiff, v. All American Moving & Storage, Inc., Metropolitan Security & Storage, Ltd., and John Doe 1-100,Defendants.
• Court: New York Supreme Court

2011 NY Slip Op 50668

All American Moving and Storage, Inc. and Metropolitan Security & Storage, Ltd., Plaintiffs,

v. W. Reilly Andrews, Mary Fernandez, at al., Defendants. Kim Jobb and Consuelo Jobb, Third-Party Plaintiffs,

v. Jerome Ackerman, et al., Third-Party Defendants. Matthew Pierson, Third-Party Plaintiff,

v. Jerome Ackerman, et al., Third-Party Defendants. Henry Wilder, Mona Wilder, Gladys Rivera a/k/a Gladys Martinez, Sharon Held and Carlton White, Third-Party Plaintiffs,

v. Jerome Ackerman, et al., Third-Party Defendants. Baker International Insurance Co., et al., Third-Party Plaintiffs,

v. Jerome Ackerman, et al., Third-Party Defendants. Centurion Marketing, Inc., et al., Plaintiffs,

v. Jerome Ackerman, et al., Third-Party Defendants. Jerome Ackerman, Barbara Ackerman, Gary Ackerman, and Irwin Ackerman a/k/a Ramp Property Company, Plaintiffs,

v. D'Agostino Supermarkets, Inc., et al Defendants. The Charter Oak Fire Insurance Company a/s/o Heating and Burning Supply Inc., 479 Walton LLC, and Andrew Nitze, et al., Plaintiffs,

v. Ramp Property Company, et al., Defendants. Peter Wolff, Plaintiff,

v. Jerome Ackerman, et al., Third-Party Defendants. Geogette Bardowell, Plaintiff,

v. Ramp Property Company, et al., Defendant. BA Ba Auto Repair, INC., Plaintiff,

v. Metropolitan Security & Storage, Ltd., Defendant. Philip Seldon, Plaintiff,

v. All American Moving & Storage, Inc., Metropolitan Security & Storage, Ltd., and John Doe 1-100, Defendants.

21995-2005

Supreme Court, Bronx County

Decided on April 19, 2011

Massaro, J.

Dominic R. Massaro, J.

Pursuant to CPLR Rule 2221(d), Movants Jerome Ackerman, Barbara Ackerman, Gary Ackerman and Irwin Ackerman (d/b/a Ramp Property Co.) (hereinafter collectively, "RAMP"), move forleave to reargue¹ the underlying motions decided in the Court's June 14, 2010, orders insofar as they dismissed cross claims against Defendant D'Agostino Supermarkets, Inc. (hereinafter, "D'Agostino") and Metropolitan Security & Storage Limited (hereinafter, "Metropolitan"). Upon granting reargument, RAMP demands that the Court find that the cross claims should not have been dismissed. RAMP also claims that a branch of its motion for summary judgment on its cross claims against D'Agostino remains outstanding.

As relevant here, the Court notes that the underlying motion that RAMP seeks to reargue is D'Agostino's summary judgment motion seeking dismissal of all claims and cross claims in Action No.1 against D'Agostino. RAMP seeks to reargue the motion to the extent that it sought dismissal of RAMP's cross claims against D'Agostino. RAMP also seeks to reargue Metropolitan's summary judgment motion which, among other things, dismissed RAMP's cross claims against Metropolitan.

Opposition to Reargument

Concerning the instant application, Metropolitan opposes RAMP's reargument pointing out that Movants failed to submit a complete set of papers and exhibits that were originally filed with the underlying motions. Without these papers, Metropolitan argues, the Court cannot determine whether, in fact, it overlooked or misapprehended any relevant facts or law. Indeed, various courts have withheld reargument based upon a movant's failure to submit a complete set of papers relevant to the underlying motion (see generally, Sheedy v. Pataki, 236 AD2d 92 [3rd Dept. 1997] [within trial court's discretion to deny reargument for failure to resubmit papers submitted upon prior motion]). D'Agostino echoes Metropolitan's call that the RAMP movants failed to meet the burden upon the reargument issue.

Likewise, Charter Oak Fire Insurance Company (a/s/o Heating and Burner Supply, Inc.); 479 Walton LLC; Andres Nitze; Travelers Indemnity Company of Connecticut (a/s/o Teamwork Foundation); and the Automobile Insurance Company of Hartford (a/s/o Bruce Hirschfeld and Jane Calderon) join the opposition to reargument for the same reasons as D'Agostino and Metropolitan.

None of the answering parties accept Movants' claim that RAMP's answering papers directed toward the original underlining motions were in fact filed. Each answering party insists that RAMP made no showing that the Court either failed to comprehend the relevant facts or misapplied any controlling legal principle.²

In reply, the RAMP movants attempt to distinguish their case by arguing that the documents that were not submitted were never in their possession and, in any event, are not relevant to the Court's decision herein. Movants say they have filed all relevant motion papers that were submitted for the underlying motions and included the relevant lease agreement as an exhibit herein. Movants claim that they cannot be required to produce the entire record because they may not have been served with complete documents when the original submissions were made because service was by email.

Notwithstanding, Movants ask the Court for opportunity to request missing documents from the answering parties in order to submit them to the Court (see, RAMP's Memorandum of Law in Reply and in Further Support of Motion to Reargue, p. 5).

Legal Discussion

Clearly, movants are responsible for filing a complete record upon which a court can decide an application (see, CPLR Rule 3212[b]). A court has no obligation to retrieve from the Clerk papers filed with a previous motion in the same case. "Because a Supreme Court Justice does not retain the papers following his or her disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions, Supreme Court properly required plaintiffs to submit to it all papers that were to be considered on the instant motion" (see, Sheedy v Pataki, supra). In this case, RAMP admits that its submission fails to include the complete papers that were submitted with the motions for which RAMP now seeks reargument. In fact, RAMP asks leave to supplement the record to provide missing exhibits (see, RAMP's Memorandum of Law in Reply and in Further Support of Motion to Reargue, pp. 3 and 4).

In the absence of a complete record, as here, a Court is not presented with the full context for intelligent review and decision in making of an instant application (see generally, Cohen v. Romanoff, 27 Misc 3d 1208A^{. Ct. Kings 2010}; Lower Main St. LLC v. Thomas Re & Partners, 2005 NY Misc. Lexis 3304^{. Ct. Nassau 2005}). It is the responsibilityof a moving party to assemble complete papers which document the procedural history of an application and provide a proper foundation for the relief requested (see, generally, Fernald v. Vinci, 13 AD3d 333 [2nd Dept. 2004]). This is true for motions to reargue (see generally, JDM Import Co., Inc. v. Hartstein, 2008 NY Slip Op 30668U^{. Ct. New York 2008}). Further, a court may generally refuse to consider improperly submitted papers (see generally, Loeb v. Tanenbaum, 124 AD2d 941 [3rd Dept. 1986]).

In this litigation, the Court is faced with more than one hundred parties and third parties, more than twenty motion sequences, countless cross and counter claims, and equally voluminous cross and counter motions, all presenting a case of huge proportions. Dozens of volumes of exhibits and related papers, together with innumerable applications and motions to reconsider, renew, and/or reargue were submitted throughout case pendency. Several justices and judicial hearing officers have earlier been involved in these matters, which include transfers and consolidations from Nassau County Supreme Court. Literally scores of decisions and orders have been issued during the approximate two years the case has been before this bench for motion practice. Especially in light of this litany, the burden created by an incomplete record seriously hinders the practical and efficient management of this extremely complex litigation (see generally, Acevedo-Garcia v. Monroig, 56 Fed. R. Serv. 3d 971 [1st Cir. 2003]; opinion subsequently withdrawn upon submission of complete record, Acevedo-Garcia v. Monroig, 351 F3d 547 [3rd Cir. 2003])³ and does violence to the laudable goal of conserving the economy of judicialtime.

Based upon the foregoing, Movants Jerome Ackerman's, Barbara Ackerman's, Gary Ackerman's, and Irwin Ackerman's motion to reargue is DENIED with leave to renew. Additionally, on this record, the Court cannot evaluate RAMP's claim that a branch of its motion for summary judgment on its cross claims against D'Agostino is still outstanding.⁴ The record must contain all relevant papers that were before the Court in order to make this determination (see generally, Elkin v. Urarn Assocs., 72 AD3d 734 [2nd Dept. 2010]).

Movants are required to appropriately respond to this decision and order within 30 days of entry herein.

The foregoing constitutes the decision and order of the Court.⁵

Dated: Bronx, New York

April 19, 2011

___________________________

Hon. DOMINIC R. MASSARO

Justice of the Supreme Court

and does violence to the laudable goal of conserving the economy of judicialtime.

Based upon the foregoing, Movants Jerome...