Rodriguez v. CB Devs.

2025 NY Slip Op 30519(U)

• Court: New York Supreme Court, New York County
• Decided: February 13, 2025
• Docket: Index No. 155327/2021
• Status: Unpublished

Opinion

Rodriguez v CB Devs. 2025 NY Slip Op 30519(U) February 13, 2025 Supreme Court, New York County Docket Number: Index No. 155327/2021 Judge: Mary V. Rosado 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 02/13/2025 04:35 PM] INDEX NO. 155327/2021 NYSCEF DOC. NO. 261 RECEIVED NYSCEF: 02/13/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------X INDEX NO. 155327/2021

MOTION DATE 8/19/2024 RAYMOND ALBERT RODRIGUEZ, MOTION SEQ. NO. 002 Plaintiff,

- V -

CB DEVELOPERS D/B/A CB DEVELOPERS, LLC,C & B DEVELOPER LLC.CBJ MANAGEMENT LLC,FOOT LOCKER RETAIL, INC.,1314 DEVELOPMENT, LLC,ALBA DECISION + ORDER ON SERVICES, INC.,ALBA ENVIRONMENTAL, INC.,ARC MOTION CONTRACTING, INC.

Defendants.

1314 DEVELOPMENT, LLC,

Third-Party Plaintiff,

ALBA SERVICES, INC.

Third-Party Defendant. -------------------X

Second Third-Party Plaintiff,

ALBA ENVIRONMENTAL, INC ..

Second Third-Party Defendant. ----------------------------X

1314 DEVELOPMENT, LLC

Third Third-Party Plaintiff,

- V - ARC CONTRACTING, INC., Third Third-Party Defendant -------------------X

155327/2021 RODRIGUEZ JR., RAYMOND ALBERT vs. CB DEVELOPERS D/B/A CB Page 1 of 4 DEVELOPERS, LLC ET AL Motion No. 002

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The following e-filed documents, listed by NYSCEF document number (Motion 002) 239, 240, 241, 242, 244,250,251,252,253,254,255,259,260 were read on this motion to/for REN EW/REARGU E/RESETTLE/RECONSI DER .

Upon the foregoing documents, and after a final submission date of November 19, 2024,

Defendants C&B Developers d/b/a CB Developers, LLC, ("CB Developers") and 1314

Development, LLC's ("1314 Development") motion seeking leave to reargue this Court's

Decision and Order on motion sequence 001 dated June 17, 2024 is denied. Second Third-Party

Defendant Alba Environmental Inc.'s cross-motion seeking leave to reargue this Court's Decision

and Order on motion sequence 001 dated June 17, 2024 is denied. 1 Defendant/Third-Party

Defendant Alba Services, Inc.'s purported "cross-motion" seeking leave to reargue this Court's

Decision and Order on motion sequence 001 dated June 17, 2024 is also denied. 2

Pursuant to CPLR § 2221 (d)(2), leave to reargue shall be based upon matters of fact or law

allegedly overlooked by the court in determining the prior motion. Leave to renew or reargue is in

the discretion of the Court and is not a chance for a Defendant to raise new arguments not

previously raised (Bank of America, NA. v Fi/ho, 203 AD3d 594 [1st Dept 2022]; Fulton Market

Retail Fish Inc. v Todtman, Nachamie, Spizz & Johns, P.C., 158 AD3d 502 [1st Dept 2018]).

Leave to reargue is denied. CB Developers and 1314 Development are either rehashing old

arguments or raising new arguments for the first time which are improper grounds for reargument.

Here, there was a predecessor action which was litigated from 2018 to December 22, 2021 (see

Raymond Albert Rodriguez JR v 1314 Dev., LLC, et. al., Index No. 709132/2018). This action has

been litigated since June 2, 2021 and the motion for summary judgment, which is the motion which

1 Alba Environmental appears to have filed their cross-motion under the wrong motion sequence on NYSCEF, as their papers according to NYSCEF are filed under motion sequence 00 I rather than motion sequence 002. In any event, the Court will consider the papers on motion sequence 002. 2 This party did not even file a formal notice of cross motion but only filed an attorney affirmation (NYSCEF Doc. 244). 155327/2021 RODRIGUEZ JR., RAYMOND ALBERT vs. CB DEVELOPERS D/B/A CB Page 2 of 4 DEVELOPERS, LLC ET AL Motion No. 002

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CB Developers and 13 14 Development seek to reargue, was not filed until January 23, 2023.

Counsel for CB Developers and 1314 Development appeared in the prior 2018 action on behalf of

1314 Development and has provided no reasonable excuse as to why it did not obtain the necessary

discovery despite nearly five years of litigation, two cases, and multiple discovery conferences

having taken place. Nor did CB Developers and 1314 Development show what facts were in

Plaintiffs sole possession that would warrant denying the prior motion for summary judgment

pursuant to CPLR 3212(f). Therefore, leave to reargue is denied as to CB Developers and 1314

Development.

Defendant/Third-Party Defendant Alba Services, Inc. failed to file a notice of cross motion

in contravention of CPLR 2214 and therefore the Court denies Alba Services, Inc.' s request for

leave to reargue (see Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024] [court providently

declined entertainment of motion to renew where movant failed to file notice of motion]).

Second Third-Party Defendant Alba Environmental, Inc. 's cross-motion seeking leave to

reargue was filed on September 13, 2024. However, notice of entry of the decision which Alba

Environmental, Inc. seeks leave to reargue was field on July 19, 2024. Pursuant to CPLR

2221 (d)(3 ), a motion seeking leave to reargue be filed within thirty days after service of a copy of

the order determining the prior motion and written notice of its entry. Because Alba

Environmental, Inc.'s cross-motion 1s untimely, the Court declines to entertain Alba

Environmental, Inc.'s cross-motion seeking leave to reargue. In any event, even if the Court were

to entertain Alba Environmental, Inc.'s cross-motion, leave to reargue would still be denied as

Alba Environmental, Inc. is merely rehashing old arguments previously raised in opposition to the

prior motion for summary judgment.

155327/2021 RODRIGUEZ JR., RAYMOND ALBERT vs. CB DEVELOPERS D/B/A CB Page 3 of4 DEVELOPERS, LLC ET AL Motion No. 002

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Accordingly, it is hereby,

ORDERED that Defendants C&B Developers d/b/a CB Developers, LLC, ("CB

Developers") and 1314 Development, LLC' s (" 1314 Development") motion seeking leave

to reargue this Court's Decision and Order on motion sequence 001 dated June 17, 2024 is

denied;and it is further

ORDERED that Second Third-Party Defendant Alba Environmental Inc.' s cross-motion

seeking leave to reargue this Court's Decision and Order on motion sequence 001 dated June 17,

2024 is denied; and it is further

ORDERED Defendant/Third-Party Defendant Alba Services, Inc.'s purported "cross--

motion" seeking leave to reargue this Court's Decision and Order on motion sequence 001 dated

June 17, 2024 is denied; and it is further

ORDERED that on or before May 5, 2025, the parties are directed to meet and confer

and submit a proposed case management order to the Court via e-mail to SFC-Part33-

Clerk@nvcourts.gov reflecting an updated discovery schedule. In the event the parties arc unable

to agree to a proposed case management order, the parties shall appear for an in-person discovery

conference with the Court on May 7, 2025 in Room 442, 60 Centre Street, New York, New York;

and it is further

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of

this Decision and Order, with notice of entry, on all parties via NYSCEF.

2/13/2025 _ ____._f......\'-., V {f Ill ll

~ 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

155327/2021 RODRIGUEZ JR., RAYMOND ALBERT vs. CB DEVELOPERS D/B/A CB Page 4 of 4 DEVELOPERS, LLC ET AL Motion No. 002

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