Rubin v. Dondysh

• Citation: 555 N.Y.S.2d 1004,147 Misc.2d 221
• Parties: Morris RUBIN, Plaintiff, v. Leon DONDYSH, M.D., Defendant.
• Decision Date: 25 April 1990
• Court: New York City Court

Page 1004

555 N.Y.S.2d 1004

147 Misc.2d 221

Morris RUBIN, Plaintiff, v. Leon DONDYSH, M.D., Defendant.

Civil Court of the City of New York,

Queens County, Special Term,

Part I.

April 25, 1990.

Horing & Welikson, Forest Hills, for plaintiff; Niles C. Welikson, Esq. of counsel.

Field, Field & Field, Cedarhurst, for defendant; Carl M. Field, Esq., of counsel.

DAVID GOLDSTEIN, Judge.

Motion by plaintiff to reargue and/or renew the order of this Court dated December 19, 1989 (Rubin v. Dondysh, 146 Misc.2d 37, 549 N.Y.S.2d 579), which denied plaintiff's motion for summary judgment, is denied on both procedural and substantive grounds.

Procedurally, plaintiff has failed to adhere to approved and proper practice upon a motion to reargue or renew, which requires the submission to the judge who decided the original motion of an affidavit setting forth the decision and the ground for reargument, together with a request for an order to show cause (People v. Jenkins, 39 A.D.2d 924, 925, 332 N.Y.S.2d 915; American Trading Co. v. Fish, 87 Misc.2d 193, 194-195, 383 N.Y.S.2d 943; Sorin v. Shahmoon Industries, Inc., 34 Misc.2d 1008, 1009, 231 N.Y.S.2d 6; Ellis v. Central Hanover Bank & Trust Co., 198 Misc. 912, 913, 102 N.Y.S.2d 337). The approved procedure permits the Court, in the first instance, to determine whether there is a legitimate basis for reargument.

A motion to reargue is addressed to the discretion of the Court and is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied controlling principles of law (Rodney v. New York Pyrotechnic Products Co., Inc., 112 A.D.2d 410, 492 N.Y.S.2d 69). It does not serve as a vehicle to permit the unsuccessful party an opportunity to argue again the very questions previously decided (Fosdick v. Town of Hempstead, 126 N.Y. 651, 27 N.E. 382; Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588); nor does it permit one to advance different arguments than those made on the original application, or to take a position inconsistent from that assumed initially (Simpson v. Loehmann, 21 N.Y.2d 990, 290 N.Y.S.2d 914, 238 N.E.2d 319; Foley v. Roche, supra 68 A.D.2d at 567-568, 418 N.Y.S.2d 588). As was observed in Simpson v. Loehmann (supra), "A motion for reargument is not an appropriate vehicle for raising new questions."

Plainly, there is no basis for reargument here. Plaintiff has not established that the Court overlooked or misapprehended the relevant facts or misapplied controlling principles of law. As set forth in detail in the Court's original decision, the record is replete with factual issues which must await the trier of the facts, not for final disposition upon motion for summary judgment. The underlying circumstances leading to respondent's vacating the premises, whether there were false representations with respect to the use of the premises as a professional office, the issue of surrender of the space and mitigation all involve factual matters inappropriate for resolution upon motion for summary judgment.

These factual issues are raised by plaintiff's own moving papers and, upon that ground, defendant's failure to submit an affidavit by one with knowledge of the facts is not dispositive. As has been frequently held, where the moving papers fail to make out a prima facie case and demonstrate that there are factual issues, summary judgment must be denied, notwithstanding any deficiency in the opposing papers (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Ladup Ltd. v. Jamil, 131 A.D.2d 382, 383, 517 N.Y.S.2d 14; Missett v. Missett, 125 A.D.2d 275, 277, 509 N.Y.S.2d 815).

Contrary to plaintiff's argument on this motion, this Court did not hold that the burden of proof was upon the landlord to establish, as part of its prima facie case, that it took reasonable steps to relet the premises after the tenant had abandoned the space. While the Court did hold that the landlord had a duty to mitigate, notwithstanding the commercial relationship of the parties, clearly, the burden of proof on the issue is on the tenant, Wallis v. Falken-Smith, 136 A.D.2d 506, 523 N.Y.S.2d 827, lv. to app. dsmd. 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 47; Parkwood Realty Co. v. Marcano, 77 Misc.2d 690, 693, 353 N.Y.S.2d 623). Nothing in this Court's initial decision held otherwise. The reference to the opinion of the Appellate Term, Second Department, in Paragon Industries v. Williams, 122 Misc.2d 628, 473 N.Y.S.2d 92, that "it was incumbent upon the landlord to prove as part of its direct case that it attempted to mitigate damages by reletting the premises," does not operate to shift the burden of proof. Plainly, the cited reference in Paragon Industries was to the burden of going forward, not the ultimate burden of proof in the case, which is on the tenant. All that the quoted passage states is that the landlord, on its direct case, must come forward...