Lieberman v. Tessler

2024 NY Slip Op 33672(U)

• Court: New York Supreme Court, Kings County
• Decided: October 11, 2024
• Docket: Index No. 525049/2021
• Status: Unpublished

Opinion

Lieberman v Tessler 2024 NY Slip Op 33672(U) October 11, 2024 Supreme Court, Kings County Docket Number: Index No. 525049/2021 Judge: Richard Velasquez 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: KINGS COUNTY CLERK 10/16/2024 12:59 PM INDEX NO. 525049/2021 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 10/16/2024

At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 11th day of OCTOBER, 2024

P R E S E N T: HON. RICHARD VELASQUEZ Justice. -----------------------------------------------------------------------------X SHNEUR ZALMAN LIEBERMAN,

Plaintiff, Index No.: 525049/2021 -against- Decision and Order Mot. Seq. No. 4 REFAEL FOLLI TESSLER,

Defendants, ------------------------------------------------------------------------------X

Recitation in accordance with CPLR 2219(a) of the papers considered The following papers NYSCEF Doc #’s _30__ to __43__ read on this motion: Papers NYSCEF DOC NO.’s Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed 30-34 Opposing Affidavits (Affirmations) 40 Reply Affidavits____________ 41-43

After having come before the Court on July 17, 2024 and the court having heard

oral argument and after review of the foregoing submissions the court finds as follows:

Plaintiffs move this court by motion for an Order granting leave to reargue and/or

renew, pursuant to CPLR § 2221, the Court’s Decision and Order dated October 11, 2023

and entered on October 12, 2023 (NYSCEF Dkt. No. 28) granting Defendant Refael Folli

Tessler’s (“Defendant”) Motion to Dismiss each of Plaintiff’s causes of actions in the

Complaint pursuant to CPLR § 3211(a)(5) (Mot. Seq. No. 2), and upon granting leave to

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reargue and/or renew, vacating the Decision and Order and denying Defendant’s Motion

to Dismiss. Defendants oppose the same.

ARGUMENTS

Plaintiffs contends this motion to reargue is made on the basis that In light of two

new controlling cases from the Second Department, which are directly contrary to the

Court’s Decision, Plaintiff requests that the Court grant reargument and/or renewal,

vacate the Decision, and deny Defendant’s Motion to Dismiss.

Defendant contends the court should deny this motion because the court did not

misapply the law.

ANALYSIS

CPLR 2221 in pertinent part states: “(d) 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 its entry. CPLR 2221(d)(2) articulates the standards previously outlined in the

caselaw. A motion to reargue, it says: “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.

Under the caselaw existing prior to the 1999 amendments, a motion for re-

argument was often used when there was a change in the law after the prior order. CPLR

2221(e)(2) now clarifies that the motion to renew, not the motion to reargue, is the proper

expedient when the motion is based on a change in the law that occurs while the case is

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still subjudice, such as a new statute taking effect or a definitive ruling on a relevant point

of law being handed down by an appellate court that is entitled to stare decisis. See

Siegel, New York Practice 449 (4th ed. 2005). The distinction, made clear in the caselaw

and now embodied in the statute, is that the motion to renew involves new proof while the

motion to reargue does not; it merely seeks to convince the court that it overlooked or

misapprehended something the first time around and ought to change its mind. NY CPLR

2221. Additionally, A court has inherent discretionary power to vacate an order or

judgment in the interests of substantial justice. See Woodson v. Mendon Leasing Corp.,

100 NY2d 62, 760 NYS2d 727, 790 NE2d 1156 (2003).

In the present case, plaintiffs’ counsel has pointed out in this court’s previous

decision the court determined that “although, plaintiff contends the statute of limitations

was tolled by the Executive orders this court disagrees. Regardless of whether the

Executive order tolled or suspended the statute of limitations it does not apply to this

matter because the periods for commencement do not fall within the tolling period.” See

(Decision, pg. 2) (citing Baker v. 40 Wall Street Holdings Corp., et. al., 74 Misc.3d 381161

NYS3d 7232022 N.Y. Slip Op. 22002, “wherein the court found statute of limitations fell

outside of the tolling period, it was not affected in any way by the Executive Orders.”).

Since said decision was entered numerous binding decisions from the Appellate Division,

Second Department now hold to the contrary. Specifically, the toll under the Executive

Orders is not restricted to limitations periods that otherwise would have expired during

the time period when the Executive Orders were in effect, but rather applies to limitations

periods that had commenced but not yet expired prior to the issuance of the Executive

Orders. See Brash v. Richards, 195 AD3d 582, 149 NYS3d 560 (2021); McLaughlin v.

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Snowlift, Inc., 214 AD3d 720, 185 NYS3d 212 (2d Dep’t 2023) (“McLaughlin”), and

Williams v. Ideal Food Basket, LLC, 219 AD3d 917, 195 NYS3d 506 (2d Dep’t 2023)

(“Williams”).

Moreover, it is well established that “A toll suspends the running of the applicable

period of limitation for a finite time period, and “[t]he period of the toll is excluded from the

calculation of the [relevant time period]” (Chavez v Occidental Chem. Corp., 35 NY3d

492, 505 n 8 [2020]; see Foy v State of New York, 71 Misc 3d 605 [Ct Cl 2021]). “Unlike

a toll, a suspension does not exclude its effective duration from the calculation of the

relevant time period. Rather, it simply delays expiration of the time period until the end

date of the suspension” (Foy v State of New York, 71 Misc 3d at 608); quoting Brash v.

Richards, 195 AD3d 582, 149 NYS3d 560 (2021). As such, it is abundantly clear this court

misapplied the law and should have added an additional 228 days to the time plaintiff had

to file the complaint since it has now been made clear by the Appellate Division that the

Governor issued a toll for the 228 day period. After adding the additional 228 days to the

present case the plaintiff filed the complaint within the statute of limitations. As such

plaintiff’s motion to renew and reargue must be granted.

Accordingly, Plaintiffs request to reargue is granted and upon reargument this

Court hereby vacates the Decision and Order dated October 11, 2023 which dismissed

the action, and further orders that Defendant Refael Folli Tessler’s (“Defendant”) Motion

to Dismiss each of Plaintiff’s causes of actions in the Complaint pursuant to CPLR §

3211(a)(5) (Mot. Seq. No. 2), is hereby denied, plaintiff filed the complaint within the

statue of limitations. This matter is hereby restored to the calendar and shall proceed the

clerk is directed to enter the same.

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This constitutes the Decision/Order of the court.

Dated: Brooklyn, New York October 11, 2024 ENTER FORTHWITH:

______________________________ HON. RICHARD VELASQUEZ

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