NYSCEF INDEX no. 031617/2017 DOC. NO. 86 RECEIVED NYSCEF: 02/14/2018 SUPREME COURT OF THE STATE OF YORK COUNTY OF ROCKLAND THE BOARD OF COMMISSIONERS OF THE ROCKLAND . COUNTY SEWER DISTRICT NO. 1 and UNTY OF ROCKLAND, Na. ?ns/Mia's? Plaintiff, DECISION AND ORDER -against? ON MOTION TO REARGUE Motion 2 - MD Motion 3 - MG in part MD in part Motion 4 - MD - DC TOWN OF RAMAPO, ADJ: 3/21/18 Defendants. Thomas E. Walsh II, 1.5.6. The following papers, nL nbered 1 were considered in connection with Plaintiff?s Notice of Motion (Motion War an order pursuant to Civil Practice Law and Rules 2221 allowing Plaintiff leave to reargce defendant?s motion to dismiss Plaintiff's complaint upon the ground that the Court or misapprehended a matter of fact or law in determining the prior application, and iv} the event that such leave is granted that such re- argument then and there proceed, and for such other, further and different relief as to the Court seems just and proper; and it is also considered in connection with Plaintiff?s Notice of Motion (Motion for an order pursuant to Civil Practice Law and Rules 2221 allowing Plaintiff leave to renew Defendant?s Motion to Dismiss Plaintiff?s Complaint based upon new facts not offered on the prior motion'that would change the prior determination and in the event that such leave is granted that such renewal then and there proceed and (ii) Civil Practice Law and Rules 3212 directing the? entry of a. summary judgment in favor of Plaintiffs and for such other, further and different relief as to the Court seems just and proper; and it is also considered in connection with Defendani?s Notice of Motion (Motion for an order pursuant to Civil Practice Law and Rules 5 321:. to the Defendant to dismiss the Complaint of the Plaintiff?s ?led in the litigation herein ar?ft?i for suchother and further reiief as this Court may deem just and proper: ?3 .li- PAPERS 4? NUMBER Notice of Motion to Reargue (Motion #ngAffirmation of Larraine S. Feiden, Esq, 1 Affirmation of Opposition of Dennis EquAf-fidavit of Anthony Sharan 2 :lof'l 1 INDEX NO. 031617/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 02/14/2018 Reply Affirmation of Larraine S. Feiden, :Esq. 3 Notice of Motion to Renew and for Surnniiary Judgment (Motion #3)}Affirmation of Larraine S. Feiden, Esq lAffidavit of Michael SaberlExhibits (A G)/Memorandum of Law in Support 4 Notice of Cross Motion (Motion #4)/Afficiavit of- Dennis Esq. [Exhibits (A- Affidavit of Edward P. Dzurinko 5 Affirmation of Thomas E. Humbach, Esq. (Motion in Support/Memorandum of Law in Reply (Motion 6 Affirmation of Thomas E. Humbach, Esq. (Motion in Opposition/Memorandum of Law in Opposition (Motion 7 Reply Affidavit of Dennis Esq. (Motion #4)/Exhibit A 8 Upon the foregoing papers, the Court now rules as follows: MOTION #3 - MOTION TO REARGUE A motion seeking only leave to reargue is properly made pursuant to Civil Practice Law and Rules 5 2221(d), which states-that such motion ?shall be identified specifically as such,? [Civil Practice Law and Rules ?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,? [Civil Practice Law and Rules and ?shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals." Practice Law and Rules? The purpose of a motion for leave to reargue is not to allow a party to argue a new theory of law or request relief that was no previously asserted. [Pryor v. Commonwealth Land Title Ins. Co., 767 256 (2d Dept. 2003'); Frl'senda v. Large Enters, 280 514 (2d Dept. 2001)]. Most importantly, all motions to reargue should contain a complete set of the papers upon which they are based and which are necessary for the determination of the motion. Since a motion to reargue is not based upon any new proof, or a change in legal position, it is essential that the underlying motion be presented to the Court in its entirety. Otherwise, the Court will not be able to determine that the movant?s present position has only to do with the Court?s error and not a change in strategy. A Supreme Court Justice does not retain the papers 20f? INDEX NO. 031617/2017 NYSCEF DOC. NO. 86 . RECEIVED NYSCEF: 02/14/2018 following his or her disposition of a motion and should not be compelled to retrieve the clerk?s file in connection with its consideration of additional motions [Sheed v. Pataki, 236 92, 97 (3d Dept. 1997)]. Plaintiff?s instant motion is timely in that it was made within thrity (30) days after service of copy of the Court?s: Decision and Order dated September 26, 2017 and entered on September 27, 2017. The Court notes that the Plaintiff'smoving papers are inadequate for the relief sought as they do not contain a complete copy of the underlying papers, and worse, they do not even contain a copy of the Court?s September 26, 2017 Decision and Order. In light of the fact that Plaintiff has not provided a complete set of the underlying motion papers or a copy of the Decision and Order from which they seek relief, the motion could be denied on the basis of inadequate papers. However, despite the insufficiency of the parties, the Court has considered the arguments raised by the Plaintiff. Plaintiff is directed to consult the Court?s Part Rules prior - to filing further motions as to the requirements of filing. Turning now to Plaintiff?s Motion to Reargue, Plaintiff submits that the Court overlooked or misapprehended a matter of fact or law in determining the prior application. Specifically, Plaintiff submits that the Court?s determination that ?half of the soil was moved" in its prior Decision and Order is not supported by the record. Plaintiff asserts that the Affidavit of Charles Vezzetti and the Supplemental Memorandum of Law submitted in opposition to the Defendant's prior motion ?vehemently dispute? the Defendant?s claim that ?half the soil was removed.? The Plaintiff further avers that specific portions of the Affidavit of Charles Vezzetti demonstrate that no more than 100 cubic yards of sole were moved. Finally, Plaintiff argues that ?[f]urther discovery is warranted in this case to determine the truth.? In opposition Defendant submits that the Plaintiff has mereiy sought to have a ?second bite at the apple" in that they are asserting that the Court ?misunderstood? a fact that has already been presented in the prior motion. Specifically, Defendant?s argue that the issue of the amount of soil allegedly moved is'not a ?new fact? and the support for their argument. the Affidavit of Charles Vezzetti and the Plaintiff?s Memorandum of Law, were already considered by the Court as part of the Defendant?s prior motion. In essence the Defendant?s argument is that Plaintiff is seeking to re?argue the issue of the amount of soil that was moved by merely re-submitting the exact same documents that had previously been submitted to the Court in opposition to Defendant?s Motion to Dismiss. The Court finds that Defendant has merely re-hashed the arguments presented to the Court on their prior motion and failed to include facts that were not previously offered to the Court. Re-argument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant 30f? NO. 031617/2017 DOC. NO. 86 - RECEIVED NYSCEF: 02/14/2018 facts, or misapplled any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided [Foley v. Roche, 68 558, 56? (let Dept 1979)]. Since the Court has determined that Defendants? instant motion is only seeking to reargue those points they argued on their prior motion, the Defendants Motion to Reargue (Motion is denied in its entirety. MOTION #3 - MOTION TO RENEW AND FOR SUMMARY JUDGMENT AND MOTION #4 - CROSS MOTION FOR SUMMARY JUDGMENT Civil Practice Law and Rules? 2221 refers solely to motions for leave to renew, stating that they ?shall be identified specifically as such,? [Civil Practice Law and Rules ?shaii be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination;" I'Civii Practice Law and Rules? and ?shall contain a reasonable justification for the failure to present such facts on the prior motion.? Practice Law and Rules Plaintiff would have to present new facts not offered on the prior motion that would change the prior determination or demonstrate a change in the iaw. Additionally, if offering new facts, Piaintiff would have to offer a reasonable justification for the failure to present such facts. The Plaintiff submitted the instant motion to renew and for summary judgment while their motion to reargue (Motion was still pending. By Plaintiff?s own admission their instant motion to renew and for summary judgment ?covers much of the same ground? as the undecided motion to reargue. According to Plaintiff, the second motion contains new evidence which was unavailabie to the Plaintiff at the time that their prior motion (Motiomt 2) was filed. Specifically, Plaintiff submits that the instant motion is based on admissions made in the deposition of the former Town of Ramapo Superintendent of Highways which occurred on November 15, 2017, after the prior motion was flied. Turning first to that portion of Piaintiff?s appiication which seeks leave to renew, Plaintiff was required to present new facts not offered on the prior motion that would change the prior determination or demonstrate a change in the law. Additionally, Plaintiff was required to offer a reasonable justification for the failure to present such facts. As to the new facts, Plaintiff submits that the?former Town of Ramapo-Superintendent of Highways was not deposed until after the filing of Plaintiff?s prior motion and after the Court?s September 26, 2017 Decision and Order. Therefore, the new facts ascertained in the deposition were not availabie at the time of the prior motions and Court?s Decision as the information had not been obtained at that 4 40f? INDEX NO. 031617/2017 EYSCEE DOC. NO. 86 RECEIVED NYSCEF: 02/14/2018 time. In regards to the ?new facts,? Plaintiff argues that the admissions made in Anthony Sharan?s deposition contradict his prior affidavit and Defendant counsel?s Affirmation regarding the amount of soil and rocks that were removed from the subject location by the Defendant. As to the motion to renew, Plaintiff submits that the Defendant's opposition was replete with conclusory allegations which were lacking any evidentiary proof that the 35,000 cubic yards of soil that was contracted to be removed by Defendant was actually removed. Plaintiff submits that the undersigned's statement within the September 26, 2017 Decision and Order of the soil was removed? should not remain as law of the case. Further, Plaintiff cites numerous portions of the deposition of Anthony Sharan which Plaintiff asserts demonstrate that the Defendant did not remove any dirt ?except for a nominal sum." Specifically, Plaintiff asserts that Mr. Sharan testified that there were no procedures for removal of contaminated soil, the dirt piles were never measured, no work logs or material disbursement logs were and none of the dirt was transported to the Ramapo landfill. On the instant issue of whether ?half the soil was removed,? Plaintiff?s counsel fails to provide a reasonable excuse as to why a motion to dismiss was filed prior to Plaintiff having taken the deposition of Anthony Sharan. Specifically, Plaintiff's counsel merely states that the current motion (Motion contains new evidence which was unavailable to the Plaintiff at the time the prior motion was made. Therefore, Plaintiff has predicated their instant motion on ?new facts," and have provided a reasonable excuse as why the information was not available previously. Therefore, based on the new evidence provided by the Plaintiff as part of their Motion to Renew the Court?s prior decision is amended to read that ?the Defendants alleged they removed half of the dirt.? Turning now to Plaintiff?s motion for Summary Judgment, Plaintiff submits that based on the information obtained during Anthony Sharan's deposition and the initiating Summons and Complaint and Answer of Defendant are sufficient to satisfy the requirements as required by Civil Practice Law and Rules 5 3212. Plaintiff argues that it is undisputed that the Defendant received $400,000 and did not perform the contract to remove dirt as was agreed between the parties. According to the contract, Defendant was to remove all of the spoil which was left by the Sewer District. Plaintiff asserts that due to Defendant?s failure to remove the dirt, Plaintiff had to contract with another vendor who charged Plaintiff $465,000 for the same work. Therefore, Plaintiff asserts that Defendant has been unjustly enriched by the prepayment of the $400,000 and the Defendant?s failure to remove the contracted amount of soil. As such, Plaintiff is seeking restitution of the$400,000 which they submit was unjustly withheld by the Defendant. In'opposition and in support of Defendant?s cross motion Defendant argues that 50f? INDEX NO. 0316l7/2017 DOC. NO. 86 RECEIVED NYSCEF: 02/14/2018 the Plaintiff has failed to demonstrate that the Defendant was unjustly enriched based on the evidence submitted. Speci?cally, Defendant submits that the Affidavit of Edward P. Dzurinko demonstrates that the Court accurately characterized the amount of dirt removed as ?half? of the entire pile. Further, Defendant?s argue that the Plaintiff?s reliance on the omissions or failures of Anthony Sharan to recall information in his deposition is not Sufficient to satisfy the Plaintiff's prima facie burden as to their motion for summaryjudgment. Additionally, Defendant submits that the remaining cause of action for unjust enrichment cannot be proven-by Plaintiff, as the Plaintiff's own witness has testified that the second vendor moved approximately ?half" of the soil that was part of the original pile. The proponent of a summary judgment motion must establish his or her ciairn or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material- issues of fact. [Giuffrida v. Citibank Com, et al., 100 72 (2003), citing Alvarez v. Prospect Hosp? 68 320 (1986)]. The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. [Lacaqnfno v. Gonzalez, 306 250 (2d Dept. 2003)]. However, once such a showing has been made, the butden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. [Gonzalez v. 98 Mad Leasing: Corp, 95 124 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 851 (1985)]. Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. [Gilbert Frank Corp. v. Federal Ins. Co, 70 966 (1988); Zuckerman v. City of New York, 49 557 (1980)]. The parties have each produced evidentiary proof that is admissible and meets the prima facie burden. However, upon shifting of the burden each party through dueling affidavits and deposition testimony of Anthony Sharan has demonstrated that the existence of triable issues of fact as to the amount of soil moved by Defendant, the amount of soil moved by the second vendor and whether the Defendant was unjustly enriched due to their failure to move all of the soil as contracted between the parties. Accordingly, it is hereby ORDERED that Plaintiff?s Notice of Motion for Leave to Reargue (Motion is denied in its entirety; and it is further ORDERED that Plaintiff's Notice of Motion for Leave to Renew and for Summary Judgment (Motion is denied in part and granted in part consistent with the Court?s 6 6 of INDEX NO. 031617/2017 EYSCEF DOC. NO. 86 RECEIVED NYSCEF: 02/l4/2018 Decision; and it is further ORDERED that Defendant's Notice of Cross Motion (Motion for Summary Judgment is denied in its entirety; and it is further ORDERED that the parties are to appear for a pre triai conference on WEDNESDAY MARCH 21, 2018 at 9:30 in the Part (TAP). The foregoing constitutes the Decision and Order of this Court on Motions 2, #3 and Dated: New Cityyr York February 2018 ?lms. WELSH II Justice of the Supreme Court To: THOMAS E. HUMBACH, ESQ. COUNTY ATTORNEY FOR THE COUNTY OF ROCKLAND LARRAINE S. FEIDEN, ESQ. Principal Assistant County Attorney Attorney for Plaintiffs - (via e-file) MICHAEL KLEIN, ESQ. OFFICE OF THE TOWN ATTORNEY TOWN OF RAMAPO DENNIS ESQ. Attorney for Defendant (via e-fiie) 70f?