SCOTT v. FIELDS

• Decision Date: 09 March 2011
• Docket Number: Motion Sequence: 015,Motion Sequence: 012,Motion Sequence: 014,Docket Number: 5626/09,Motion Sequence: 013
• Citation: 2011 NY Slip Op 30858
• Court: New York Supreme Court
• Parties: GRACE MARJORIE SCOTT, Plaintiff(s), v. SHERRAN FIELDS, MOSES CRAWFORD, KECIA J. WEAVER, ESQ., KECIA J. WEAVER, P.C., STELLA AZIE, ESQ., STELLA AZIE, P.C., SELECT DEVELOPMENT GROUP, LLC, FORECLOSURE OPTIONS INC., C AND C HOMES, INC., WALD FINANCIAL SERVICES, INC., JOSEPH WALD, Defendant(s).

2011 NY Slip Op 30858

GRACE MARJORIE SCOTT, Plaintiff(s),
v.
SHERRAN FIELDS, MOSES CRAWFORD, KECIA J. WEAVER, ESQ., KECIA J. WEAVER, P.C., STELLA AZIE, ESQ., STELLA AZIE, P.C.,
SELECT DEVELOPMENT GROUP, LLC, FORECLOSURE OPTIONS INC., C AND C HOMES, INC., WALD FINANCIAL SERVICES, INC., JOSEPH WALD, Defendant(s).

Docket Number: 5626/09
Motion Sequence: 012
Motion Sequence: 013
Motion Sequence: 014
Motion Sequence: 015

SUPREME COURT - STATE OF NEW YORK
TRIAL TERM. PART 15 NASSAU COUNTY

February 7, 2011
March 9, 2011

PRESENT:
Honorable Karen V. Murphy
Justice of the Supreme Court

Judge: Karen V. Murphy

The plaintiff, by way of three separate applications, moves for the following relief: an order pursuant to CPLR §2221 [d], vacating the decision/order, dated September 14, 2010, which granted the motion to dismiss the plaintiff's complaint interposed by defendant, C and C Homes, Inc. [Sequence #12]; for an order pursuant to CPLR §2221 [d], granting leave to reargue it's motion dated, August 3, 2010, which sought renewal of a prior application, and

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upon such reargument, for an order vacating this Court's decision dated, November 4, 2010, which denied the requested renewal [Sequence #14], and; for an order pursuant to CPLR §3211 [b], dismissing the defenses asserted by defendant, Moses Crawford, as well as for an order granting a judgment by default against said defendant [Sequence #15].

Defendant, Moses Crawford, appearing pro se, moves pursuant to CPLR §§ 3211(a)(5) and (7), for an order dismissing the plaintiff's complaint as asserted against him (Sequence #13).

In determining the within applications, this Court premises it's decision upon the facts underlying the within action as they were fully set forth in this Court's decision, dated May 3, 2010. This Court initially addresses the plaintiff's application, which seeks an order vacating this Court's decision, dated September 14, 2010, which granted the application interposed by defendant, C & C Homes, Inc., and dismissed the plaintiff's claims as asserted against said defendant.

It is well settled that "[m]otions for reargument are addressed to the sound discretion of the trial court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or mistakenly arrived at its earlier decision." (Viola v. City of New York, 13 A.D.3d 439, 786 N.Y.S.2d 556 (2d Dept., 2004); Carrillo v. PM Realty Group, 16 A.D.3d 611, 793 N.Y.S.2d 69 (2d Dept., 2005); McNeil v. Dixon, 9 A.D.3d 481, 780 N.Y.S.2d 635 [2d Dept., 2004]). A motion to reargue is not to afford an unsuccessful party with additional opportunities to reargue issues previously decided, or to set forth arguments which differ in substance from those originally articulated (McGill v. Goldman,261 A.D.2d 593, 691 N.Y.S.2d 75 (2d Dept., 1999); Woody's Lumber Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 817 N.Y.S.2d 391 (2d Dept., 2006); Gellert & Rodner v. Gem Community, Mgt. Inc., 20 A.D.3d 388, 797 N.Y.S.2d 316 [2d Dept., 2005]).

In support of the application, counsel appears to be arguing that when granting C & C's application, this Court misapprehended matters of fact in relation to statements made to the plaintiff by defendant Crawford. However, in the supporting affirmation, counsel does not direct the supporting arguments to the decision issued on September 14, 2010. Rather counsel reiterates the allegations contained in the complaint and makes particular references to an Order issued by this Court on May 3, 2010, which neither entertained an application by C and C Homes for an order dismissing the plaintiff's complaint, nor granted any such relief. While the Court is cognizant that a motion to reargue is to afford a party an opportunity to demonstrate that the Court overlooked the facts or law in deciding a prior application, "such a motion is made on the papers submitted on the original motion" (Phillips v. Village of Oriskany, 57 A.D.2d 110,394 N.Y.S.2d 941 (4^th Dept., 1977); James v. Nestor, 120 A.D.2d 442, 502 N.Y.S.2d 27 [1^st Dept 1986]).

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In the instant matter, counsel for the plaintiff provides neither a copy of the decision dated, September 14, 2010, nor the supporting and opposing affirmations relevant to C and C's application. Alternatively, counsel provides a copy of a decision unrelated to C & C Homes, as well as exhibits in relation to previous applications involving defendants, Azie and Weaver, against whom the action has been dismissed. Accordingly, as counsel has failed to establish how this Court misapprehended the facts or law in relation to the decision issued on September 14, 2010, the application is hereby Denied.

The Court now addresses the plaintiff s application for an order vacating this Court's decision dated, November 4, 2010. Said decision denied the...