American Trading Co., Inc. v. Fish

• Decision Date: 03 March 1975
• Citation: 383 N.Y.S.2d 943,87 Misc.2d 193
• Parties: AMERICAN TRADING COMPANY, INC., Plaintiff, v. Leonard FISH, Defendant.
• Court: New York Supreme Court

Page 943

383 N.Y.S.2d 943

87 Misc.2d 193

AMERICAN TRADING COMPANY, INC., Plaintiff, v. Leonard FISH, Defendant.

Supreme Court, Special Term, New York County, Part I.

March 3, 1975.

Kass, Goodkind, Wechsler & Gerstein, New York City, N.Y., for plaintiff; Michael P. Fuchs, New York City, of counsel.

Liebman, Eulau, Robinson & Perlman, New York City, N.Y., for defendant; Lawrence M. Rosenstock, New York City, of counsel.

ARNOLD L. FEIN, Justice.

This is a motion by plaintiff for reargument and renewal of the decision of this court dated February 19, 1974 (78 Misc.2d 210, 357 N.Y.S.2d 337), and the order entered thereon June 6, 1974, granting defendant's motion to dismiss the complaint because barred by the four year statute of limitations applicable to a sales contract (U.C.C. Sec. 2--725(1)).

The motion for reargument and renewal is denied. The voluminous papers submitted, both upon the original motion and upon this application for reargument and renewal, do not warrant the relief sought. Counsel has failed to adhere to proper practice. On a motion for reargument there should be submitted to the judge who decided the original motion an affidavit setting forth the decision and the asserted ground for reargument, together with a request for an order to show cause. The judge may then determine in the first instance whether there is a basis for reargument. This procedure was not followed here. Plaintiff at no time applied for leave to reargue. (Ellis v. Central Hanover Bank & Trust Co., 198 Misc. 912, 102 N.Y.S.2d 337; Sorin v. Shahmoon, 34 Misc.2d 1008, 231 N.Y.S.2d 6; Peo. v. Jenkins, 39 A.D.2d 924, 332 N.Y.S.2d 915).

Upon the merits, plaintiff has failed to establish that the court overlooked any controlling principle of law or misapprehended any material fact. A motion for reargument, addressed to the discretion of the court, is not designed as a vehicle to permit the unsuccessful side to argue again the very questions previously decided. (Fosdick v. Town of Hempstead, 126 N.Y. 651, 27 N.E. 382). A decision rendered upon a motion is a disposition of the issues therein presented and should not be deemed an invitation to a response by means of reargument.

Upon the original motion, this court held that the essence of the transaction was the sale of goods and that the other clauses of the agreement which related to matters other than sale merely provided the mechanism for the sales. Upon reargument and renewal, plaintiff now, for the first time, alleges without new facts that the essence of the underlying agreement was to establish a financing or credit arrangement.

'A motion for reargument is not an appropriate vehicle for raising new questions * * *' (Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319). The position now taken is inconsistent with that previously relied upon. It is not properly subject of a motion to reargue.

An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew and therefore not made known to the court. Renewal is denied in the absence of a valid excuse for not submitting the additional facts upon the original application. (Ecco High Frequency Corp. v. Amtorg Trading Corp., Sup., 81 N.Y.S.2d 897, aff'd 274 App.Div. 982, 85 N.Y.S.2d 304, rearg. and app. den., 274 App.Div. 1056, 86 N.Y.S.2d 465; Holad v. MVAIC, 53 Misc.2d 952, 280 N.Y.S.2d 87).

No additional facts have been presented other than those previously considered by the court. Although plaintiff asserts a new argument, not raised on the original application, this is an insufficient basis for a motion to renew. Moreover, even if it were deemed sufficient, and it is not, there is no claim of mistake, inadvertence, surprise or excusable neglect. Nor is it contended that the application is supported by any new facts or information which came to the knowledge of plaintiff or happened since the prior determination or that the new matter asserted could not have been readily and with diligence made part of the original application. (See Ecco High Frequency Corp. v. Amtorg Trading Corp., supra, 81 N.Y.S.2d at 899).

It appears that after the court rendered the prior decision and before entry of the order thereon, plaintiff served an amended complaint asserting three additional causes of action. Upon this application for reargument, plaintiff seeks court approval for such service, or, in the alternative, leave to serve such an amended complaint. The same device was attempted upon settlement of the order on the decision granting defendant's motion to dismiss. Plaintiff then submitted a counter order containing a...