LLC v. Barbara Garrett (2012)

MEMORANDUM OF DECISION RE MOTION TO REARGUE DATED JANUARY 6, 2012 (# 106.00)

Pursuant to P.B. § 11–12(c) the undersigned, being the judge who rendered the decision, is required to “decide, without a hearing, whether the motion to reargue should be granted.”

The court issued a Memorandum of Decision on December 23, 2011 (# 104.00) on defendant's October 27, 2011 Motion to Dismiss (# 101.00).   Therein this court stated on page 10:  “In the instant case excluding the first terminal date of September 26, 2001, the date of the defendant's appearance ․” The Memorandum of Decision contains a typographical error and that sentence is corrected to read:  “In the instant case excluding the first terminal date of September 26, 2011, the date of the defendant's appearance ․” The court notes that the Memorandum of Decision correctly states the date of September 26, 2011 twice on page 5.

The Defendant's Motion to Reargue dated January 6, 2012 (# 106.00) purports to attach a copy of the Defendant's notice of appearance as Exhibit A. There is no Exhibit A attached to the Motion to Reargue.

An Appearance form JD–CL–12 Rev. 7/10 is in the clerk's file filed by the defendant dated September 26, 2011.   This court relied on that appearance and the date of September 26, 2011 contained in that appearance form in denying the Motion to Dismiss.   This court was aware that the appearance form dated September 26, 2011 contained a date stamp by the court clerk of September 28, 2011.   The court made that fact known to the parties on the record in the evidentiary hearing on the Motion to Dismiss and furnished a copy of that September 26, 2011 appearance form with the September 28, 2011 date stamp to each party in open court.   Based on the documents in the file, the court found that September 26, 2011 was the date of “the filing of an appearance.”  P.B. § 10–30.

The court finds that if the date of filing of the appearance is September 28, 2011, then the Motion to Dismiss would be timely having been filed “within thirty days of the filing of the appearance.”   The court found that the date of filing of the appearance was September 26, 2011 and the October 27, 2011 Motion to Dismiss was not filed “within thirty days of the filing of the appearance.”

The Motion to Reargue dated January 6, 2012 (# 106.00) is denied.

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.