Minister, Elders and Deacons of Reformed Protestant Dutch Church of City of New York v. 198 Broadway, Inc.

Decision Date10 July 1990
Citation559 N.Y.S.2d 866,559 N.E.2d 429,76 N.Y.2d 411
Parties, 559 N.E.2d 429 In the Matter of MINISTER, ELDERS AND DEACONS OF THE REFORMED PROTESTANT DUTCH CHURCH OF THE CITY OF NEW YORK, Respondent, v. 198 BROADWAY, INC., et al., Respondents, and Henry Modell and Co., Inc., Appellant.
CourtNew York Court of Appeals Court of Appeals

Walter Feldesman, David Rosenberg and Michael G. Shannon, New York City, for appellant.

Philip L. Graham, Jr., John L. Hardiman and Karen A. Popp, New York City, for Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, respondent.

OPINION OF THE COURT

PER CURIAM.

Having unsuccessfully prosecuted two appeals and two prior motions in this court, respondent Henry Modell and Co. (Modell) has now moved for an order "recalling and amending the remittitur" of our 1983 decision upholding petitioner's right to possess the commercial premises that respondent formerly sublet. The motion is plainly untimely and, for that reason it should be dismissed (22 NYCRR 500.11[g][3]; see, e.g., Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 999, 526 N.Y.S.2d 434, 521 N.E.2d 441). Further, because the motion is utterly without legal support and was evidently made for the purpose of delaying enforcement of petitioner's seven-year-old judgment, we conclude that, as specifically requested by petitioner, a sanction in the amount of $2,500 should be imposed upon respondent Modell (see, 22 NYCRR 130-1.1--130-1.5). *

The present motion is the most recent of a lengthy series of efforts by respondent to overturn a 1982 Appellate Division decision awarding petitioner possession of certain commercial space located at 198 Broadway in Manhattan (88 A.D.2d 511, 450 N.Y.S.2d 4). The underlying dispute concerned respondent's right to renew its sublease in the face of the decision by the master tenant not to renew its master lease. Respondent took an appeal to this court pursuant to leave granted by the Appellate Division, and we affirmed the Appellate Division order (59 N.Y.2d 170, 464 N.Y.S.2d 406, 451 N.E.2d 164).

Respondent reacted to this decision, which was rendered in 1983, by initiating and pursuing what we later characterized as "a barrage of litigation" (Modell & Co. v. Minister, Elders & Deacon of Refm. Prot. Dutch Church, 68 N.Y.2d 456, 460, 510 N.Y.S.2d 63, 502 N.E.2d 978), including a declaratory judgment action based on a new legal theory, an unsuccessful appeal to this court from the Appellate Division order dismissing that action (see, id., affg. 114 A.D.2d 751, 494 N.Y.S.2d 594), two postappeal motions addressed to this court's disposition of that appeal (see, 69 N.Y.2d 741, 897, 512 N.Y.S.2d 369, 504 N.E.2d 696), and two separate motions to vacate the dispossess judgment that we upheld in 1983. Each of these motions to vacate was based on purported "newly discovered evidence" and relied upon yet another legal theory. Following the trial court's denial of the second motion to vacate--and respondent's unsuccessful attempts both to reargue and to appeal from this denial--respondent made the present motion, which seeks "clarification" of our 1983 ruling.

The motion is "frivolous" within the meaning of rule 130-1.1(a) of the Uniform Rules for Trial Courts, since it is "completely without merit in law or fact" and "cannot be supported by a[ny] reasonable argument for an extension, modification or reversal of existing law" (22 NYCRR 130-1.1[c][1]. In addition to its having been made almost seven years after the time for making such motions expired (see, 22 NYCRR 500.11[g][3], the motion is procedurally insupportable. Although it has denominated the present request a motion "to recall and amend the remittitur" to "clarify" a prior decision of this court, Modell is, in substance, asking the court to consider yet another "new" legal theory, ostensibly, supported by more "newly discovered evidence". Notably, much of the "newly discovered evidence" was either available or reasonably discoverable in the early stages of this litigation. Further, the newly coined legal theory is really nothing more than a recast version of Modell's prior arguments, all of which have already been rejected.

The present motion is also "frivolous" in that it was evidently "undertaken primarily to delay or prolong the resolution of the litigation" (McKinney's 1990 New York Rules of Court [22 NYCRR] § 130-1.1[c][ii]. In reaching this conclusion, we have considered, as part of "the circumstances under which the conduct took place" (22 NYCRR 130-1.1[c], the extended history of this litigation and the numerous postjudgment efforts respondent has made to overturn the judgment. While some of the steps respondent took were legitimate and of at least colorable merit, many others, most notably respondent's two prior reargument motions addressed to this court,...

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