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Chao v. Burges

Chao v Burges 2025 NY Slip Op 30165(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 654164/2021 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

[FILED: NEW YORK COUNTY CLERK 01/08/2025 12:35 P~ INDEX NO. 654164/2021 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 01/08/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -----------------------------------------------------------------------------X INDEX NO . 654 164/2021 STEPHEN CHAO, MARIANN MADRON MOTION DATE 08/28/2024 Plaintiff, MOTION SEQ. NO. 005 - V -

ANTHONY BURGES , DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------X

The following e-fil ed documents, listed by NYSCEF document number (M otion 005) 160 . 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171 , 172, 173, 174, 175, 176,177, 178, 179, 180, 181, 182 , 183, 184 , 185, 186, 187, 188, 189, 190,191 , 192, 193,194 , 195, 196, 197,199, 200,201,202 , 203 , 204,205,206 , 207 , 208 , 209, 210 , 211, 212 were read on th is motion to/for REARGUMENT/RECONSIDERATION

APPEARANCES: The Law Office of Theod o r e Geiger, PLLC, Ne w York, New York (Theodore Geiger, Esq., of counse l) for Plaintiffs.

The Kimmel Law Firm, New York, New Yo rk (Brian S. Kimmel , Esq., of counsel), for Defendant.

HON. EMILY MORALES-MINERVA:

In this action for fraud and promissory estoppel,

p l aintiffs STEPHEN CHAO and MARIANN MADRON (Pl aint iffs) move,

pursuant to CPLR § 2221 (d) and (e}, for leave to renew and

rea rgue the De c ision and Order, dated Ju ly 24, 2024, of the

undersigned. 1 Defendant ANTHONY BURGES opposes the motion.

[FILED: NEW YORK COUNTY CLERK 01/08/2025 12:35 P~ INDEX NO. 654164/2021 NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 01/08/2025

Slip Op 00009 [3d Dept 2025] [internal quotation marks

omitted]) . "Renewal is granted sparingly and should not be used

as a second chance freely given to parties who have failed to

exercise due diligence in making their first factual

presentation" (Wade v Giacobbe, 176 AD3d 641 [1st Dept 2019]).

Here, plaintiffs "move to renew and add additional factual

representation to support" the admissibility of plaintiffs'

exhibits, which this court previously held were not in

admissible form (see NYSCEF Doc. No. 197, Plaintiffs' Memorandum

of Law; see also NYSCEF Doc. 159, Decision and Order, dated July

29, 2024). However, attempting to submit previously submitted

materials in proper form does not equate to presenting a new

fact. Therefore, plaintiffs' motion for renewal pursuant to

CPLR § 2221 (e) is denied.

Accordingly, it is

ORDERED that plaintiffs STEPHEN CHAO and MARIANN MADRON

motion (seq. no. 005) is denied in its entirety.

¹/7/2025 DATE

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

654164/2021 CHAO, STEPHEN ET AL vs. BURGES, ANTHONY Page 4 of 4 Motion No. 005

4 of 4 [* 4]

Footnotes

[1] The subje ct order denie d plaintiffs' motion for s ummary judgment i n its enti rety and granted plaintiffs' mot ion to dismiss defendant's affirmat ive d efenses and counterclaim , in p art, to the extent of di s missing t he coun t erc laim a nd affirmative d efe nses numbered th ird, fourt h, f i f th , sixth, sevent h, eighth , ninth, el eventh , twe l fth, four te ent h , fi ft een th, six te enth , seventeenth, eighteenth, n i ne t eenth , twentieth, and twenty- f irst (see NYSCEF 654164/2021 CHAO , STEPHEN ET AL vs . BURGES, ANTHONY Page 1 of 4 Motion No. 005 [* 1] 1 of 4 At the outset, the Court notes that pursuant to this Court's Decision and Order dated July 24, 2024, plaintiffs were ordered to "serve defendant with notice of entry within ten days from the date of this decision and order" (NY St Elec Filing [NYSCEF] Doc. No. 159, Decision and Order, dated July 29, 2024) Plaintiff failed to serve defendant with notice of entry and to date has not done so. Therefore, this motion is procedurally improper (see CPLR § 2221 (d] (3]; see also NYSCEF Doc. No. 203, Defendant's Affirmation in Opposition). In any event, for the reasons set forth below, the motion is denied entirely. A motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion" (CPLR § 2221 [d) [2)) 2 "Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided . or to present arguments different from those originally asserted" (Setters v AI Properties and Developments (USA) Corp.,

[139] AD3d 492 [1st Dept 2016]; see also Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971, 971 [1st Dept 1984]. The purpose of Doc. 159, Decision and Order dated July 29, 2024). 2 CPLR § 222l(d) states, "a motion for leave to reargue: (1) shall be identified specifically as such; (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of entry." 654164/2021 CHAO, STEPHEN ET AL vs. BURGES, ANTHONY Page 2 of 4 Motion No. 005 2 of 4 [* 2] reargument is to afford a party an oppor tunity to e stablish that the court overlooked or misapprehended the relevant f acts o r misapplied any contro lling princip le of law (see generally Pro Brokerage, Inc. , 99 AD2d at 97 1 ). Further, the granting of a motion to re argue is left to the sound d i scretion of the Court, whose decision the moving party seeks to reargue ( id . ; see also Peak v Northway Travel Trailers Inc., 260 AD2d 840 [3d Dept 1 999]). Applying these principles here, p l a i ntiffs do not establish that the Court over l ooked or misapprehended any matters of fac t or law. Instead, plaintiffs repeat arguments and assertions ra i sed in their pr i o r motion f or summary judgment. Given these arguments were previously cons i dered, and rejected in connec t ion with plaintiffs' original motion, the motion to r ea rgu e purs u ant to CPLR § 2221 (d) is denied. Pursuant to CPLR § 2221 (e), "a mot i on for leave to renew shall be based upon new fact s not offered on the prior motion that would change the prior determ i nat i on and shall contain reasonable justification for the failure to present such facts on the pr i or mo t ion" 3 (Burgos v Darden Restaurants, Inc ., 2025 NY 3 CPLR § 2221 {e ) p r ovi des, "a motion for le ave to renew : (1) shall be identified specifically as such ; (2 ) shall be bas ed upon new facts not offered on the pr io r mot ion that would change the prior d etermi nation or shall demons tra te that there has been a change in the law that would change the prior de te r mination; and (3) shall contain reasonable jus ti f i ca tion for the fa ilure to present such facts on the prior motion ." 6S4164/2021 CHAO, STEPHE N ET AL vs. BURG ES, ANTHONY Page 3 of 4 Motion No. 005 3 of 4 [* 3]