Joseph Chen, Inc. v Romona Keveza Collection LLC 2025 NY Slip Op 30075(U) January 10, 2025 Supreme Court, New York County Docket Number: Index No. 153413/2020 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. INDEX NO. 153413/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 01/10/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------------------X INDEX NO. 153413/2020 JOSEPH CHEN, INC., and DINA KOZLOVSKA, MOTION DATE 07/11/2024 Plaintiff, MOTION SEQ. NO. 008 -v- ROMONA KEVEZA COLLECTION LLC,ROMONA KEVEZA ONE ROCK, LLC,ROMONA KEVEZA 1 ROCK LLC, and DECISION + ORDER ON ROMONA KEVEZA MOTION
Defendant. -------------------X.
The following e-filed documents, Hsted by NYSCEF document number (Motion 008) 301, 302, 303, 304, 305,306,307,308,309,310,311,312,313,314,315,316,317,318,319,320,321,322,323,324,325, 326,327,328,329,330,331,332,333,334,335,336,337 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .
APPEARANCES:
Virginia & Ambinder, LLP, New York, NY (James E. Murphy, Esq., and Jenny S. Brejt, Esq., of counsel) for plaintiff.
Herlihy LLP, White Plains, NY (Ali R. Jaffery, Esq., of counsel), for defendants.
HON. EMILY MORALES-MINERVA:
In this action, pursuant to the Freelance Isn't Free Act
see Administrative Code of the City of New York, title 20, ch
10), plaintiffs JOSEPH CHEN, INC., and DINA KOZLOVSKA move
{sequence number 008), pursuant to CPLR § 2221{d), for an order
granting reargument, or in the alternative, pursuant to CPLR
§ 2221(e), for an order granting their motion to renew.
Defendants ROMONA KEVEZA COLLECTION LLC, ROMONA KEVEZA ONE ROCK,
LLC, ROMONA KEVEZA 1 ROCK LLC, and ROMONA KEVEZA oppose, and 153413/2020 CHEN, JOSEPH vs. ROMONA KEVEZA COLLECTION LLC Page 1 of6 Motion No. 008
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cross-move seeking an order pursuant to CPLR § 2221(d), granting
reargument and dismissing plaintiffs' complaint.
For the reasons set forth below, the Court denies both
motions in their entirety.
ANALYSIS
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]) . 1
"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
reargument is to afford a party an opportunity to establish that
the court overlooked or misapprehended the relevant facts or
misapplied any controlling principle of law see generally Pro
1 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."
153413/2020 CHEN, JOSEPH vs. ROMONA KEVEZA COLLECTION LLC Page 2of6 Motion No. 008
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Brokerage, Inc., 99 AD2d at 971}. Further, the granting of a
motion to reargue is left to the sound discretion 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
1999} } .
Pursuant to CPLR § 2221(e), "a motion for leave to renew
shall be based upon new facts not offered on the prior motion
that would change the prior determination and shall contain
reasonable justification for the failure to present such facts
on the prior motion" {Burgos v Darden Restaurants, Inc., 2025 NY
Slip Op 00009 [3d Dept 2025] [internal quotation marks
omitted]) . 2 "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]).
Plaintiffs' Motion to Renew and Reargue
Plaintiffs seek to renew and reargue their motion for
summary judgment (seq. no. 007), contending that the Court
2 CPLR § 2221 (e) provides, "a motion for leave to renew: (1) shall be identified specifically as such; (2) shall 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; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion."
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improperly considered arguments and evidence introduced by
Defendants for the first time in their "Affirmation in Support
and Opposition," with the relevant documents attached thereto
see NYSCEF Docs. Nos. 288-294). Plaintiffs argue that these
submissions notably the "Linkedin" screenshots purportedly
showing Chen's employment relationships - were submitted as an
improper sur~reply and should not have been considered against
Plaintiffs' motion.
However, irrespective of the procedural propriety of
Defendant's reply, the court explicitly stated that the evidence
submitted therein was not dispositive, and that the "record
overall" raised sufficient factual questions regarding Chen's
employment relationships to preclude summary judgment (see
NYSCEF Doc. No. 297, Decision and Order, dated May 6, 2024, p
19; see also Macklowe v Browning School, 80 AD2d 790 [1st Dept
1981] [providing that reargument is not proper where the moving
party fails\ to demonstrate a "controlling relevant fact or law"
was overlooked or misapprehended].
Further, plaintiff had a full and fair opportunity to
address the alleged procedural issues with the Defendants' reply
at oral argument, held on March 21, 2024, but did not see
NYSCEF Doc. No. 295, Certified Transcript of Proceedings; cf.
McCarthy v City of New York, 5 AD3d 445 [2d Dept 2004]).
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As to Plaintiffs' motion to renew, they seek to submit
additional evidence regarding the nature of Chen's relationship
with individuals referenced in Defendants' Linkedin screenshots.
Plaintiffs, however, fail to provide a "reasonable excuse" for
not presenting this evidence during the initial motion (see
Illinois Nat. Ins. Co. v Zurich Am. Ins. Co., 107 AD3d 608 [1st
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Joseph Chen, Inc. v Romona Keveza Collection LLC 2025 NY Slip Op 30075(U) January 10, 2025 Supreme Court, New York County Docket Number: Index No. 153413/2020 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. INDEX NO. 153413/2020 NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 01/10/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------------------X INDEX NO. 153413/2020 JOSEPH CHEN, INC., and DINA KOZLOVSKA, MOTION DATE 07/11/2024 Plaintiff, MOTION SEQ. NO. 008 -v- ROMONA KEVEZA COLLECTION LLC,ROMONA KEVEZA ONE ROCK, LLC,ROMONA KEVEZA 1 ROCK LLC, and DECISION + ORDER ON ROMONA KEVEZA MOTION
Defendant. -------------------X.
The following e-filed documents, Hsted by NYSCEF document number (Motion 008) 301, 302, 303, 304, 305,306,307,308,309,310,311,312,313,314,315,316,317,318,319,320,321,322,323,324,325, 326,327,328,329,330,331,332,333,334,335,336,337 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER .
APPEARANCES:
Virginia & Ambinder, LLP, New York, NY (James E. Murphy, Esq., and Jenny S. Brejt, Esq., of counsel) for plaintiff.
Herlihy LLP, White Plains, NY (Ali R. Jaffery, Esq., of counsel), for defendants.
HON. EMILY MORALES-MINERVA:
In this action, pursuant to the Freelance Isn't Free Act
see Administrative Code of the City of New York, title 20, ch
10), plaintiffs JOSEPH CHEN, INC., and DINA KOZLOVSKA move
{sequence number 008), pursuant to CPLR § 2221{d), for an order
granting reargument, or in the alternative, pursuant to CPLR
§ 2221(e), for an order granting their motion to renew.
Defendants ROMONA KEVEZA COLLECTION LLC, ROMONA KEVEZA ONE ROCK,
LLC, ROMONA KEVEZA 1 ROCK LLC, and ROMONA KEVEZA oppose, and 153413/2020 CHEN, JOSEPH vs. ROMONA KEVEZA COLLECTION LLC Page 1 of6 Motion No. 008
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cross-move seeking an order pursuant to CPLR § 2221(d), granting
reargument and dismissing plaintiffs' complaint.
For the reasons set forth below, the Court denies both
motions in their entirety.
ANALYSIS
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]) . 1
"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
reargument is to afford a party an opportunity to establish that
the court overlooked or misapprehended the relevant facts or
misapplied any controlling principle of law see generally Pro
1 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."
153413/2020 CHEN, JOSEPH vs. ROMONA KEVEZA COLLECTION LLC Page 2of6 Motion No. 008
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Brokerage, Inc., 99 AD2d at 971}. Further, the granting of a
motion to reargue is left to the sound discretion 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
1999} } .
Pursuant to CPLR § 2221(e), "a motion for leave to renew
shall be based upon new facts not offered on the prior motion
that would change the prior determination and shall contain
reasonable justification for the failure to present such facts
on the prior motion" {Burgos v Darden Restaurants, Inc., 2025 NY
Slip Op 00009 [3d Dept 2025] [internal quotation marks
omitted]) . 2 "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]).
Plaintiffs' Motion to Renew and Reargue
Plaintiffs seek to renew and reargue their motion for
summary judgment (seq. no. 007), contending that the Court
2 CPLR § 2221 (e) provides, "a motion for leave to renew: (1) shall be identified specifically as such; (2) shall 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; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion."
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improperly considered arguments and evidence introduced by
Defendants for the first time in their "Affirmation in Support
and Opposition," with the relevant documents attached thereto
see NYSCEF Docs. Nos. 288-294). Plaintiffs argue that these
submissions notably the "Linkedin" screenshots purportedly
showing Chen's employment relationships - were submitted as an
improper sur~reply and should not have been considered against
Plaintiffs' motion.
However, irrespective of the procedural propriety of
Defendant's reply, the court explicitly stated that the evidence
submitted therein was not dispositive, and that the "record
overall" raised sufficient factual questions regarding Chen's
employment relationships to preclude summary judgment (see
NYSCEF Doc. No. 297, Decision and Order, dated May 6, 2024, p
19; see also Macklowe v Browning School, 80 AD2d 790 [1st Dept
1981] [providing that reargument is not proper where the moving
party fails\ to demonstrate a "controlling relevant fact or law"
was overlooked or misapprehended].
Further, plaintiff had a full and fair opportunity to
address the alleged procedural issues with the Defendants' reply
at oral argument, held on March 21, 2024, but did not see
NYSCEF Doc. No. 295, Certified Transcript of Proceedings; cf.
McCarthy v City of New York, 5 AD3d 445 [2d Dept 2004]).
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As to Plaintiffs' motion to renew, they seek to submit
additional evidence regarding the nature of Chen's relationship
with individuals referenced in Defendants' Linkedin screenshots.
Plaintiffs, however, fail to provide a "reasonable excuse" for
not presenting this evidence during the initial motion (see
Illinois Nat. Ins. Co. v Zurich Am. Ins. Co., 107 AD3d 608 [1st
Dept 2013]; see also Queens Unit Venture, LLC v Tyson Ct. Owners
==~' 111 AD3d 552 [1st Dept 2013] [providing that a motion to
renew is not a second chance freely given to parties who have
not exercised due diligence in making their first factual
presentation]). Therefore, no grounds exist to, grant a renewal.
Defendants' Cross-Motion to Reargue
Defendants move to reargue their cross-motion .for summary .
judgment (seq. no. 007), alleging that the court misinterpreted
the First Department's Order concerning the applicability of
Freelance Isn't Free Act ("FIFA"). Offering an opinion of the
law of this case does not make for the requisite showing that
this court overlooked or misapprehended any such fact or law in
denying the motion for summary judgment see CPLR 2221(d} (2)).
Accordingly, it is
ORDERED that both plaintiffs JOSEPH CHEN, INC., and DINA
KOZLOVSKA's motion to renew and reargue and Defendants' ROMONA
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. NYSCEF DOC. NO. 340 RECEIVED NYSCEF: 01/10/2025
KEVEZA COLLECTION LLC, ROMONA KEVEZA ONE ROCK, LLC, ROMONA
KEVEZA 1 ROCK LLC, and ROMONA KEVEZA cross-motion to reargue are
denied in their entirety.
THIS CONSTITUTES THE DECISION-AND ORDER OF THE COURT
1/10/2025 DATE MORALES-MINERVA, J.S.C.
~ 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
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