ASSOCIATES INC v. NORTH MAIN REALTY CO BRP 466 LLC LLC (2025)

The following papers numbered 1 to 4 were read on this motion:

Papers Numbered

Notice of Motion, Affirmation and Exhibits 1

Memorandum of Law in Opposition 2

Affirmation in Opposition 3

Affirmation in Reply 4

Plaintiff brings its motion seeking leave to reargue the Court's Decision and Order dated August 14, 2025 (the “Decision”) and leave to renew the Decision in the interests of justice. In the Decision, the Court granted the motion to dismiss filed by defendant BRP 466 Main Street, LLC (“BRP”) and the motion filed by defendants North & Main Realty Co. (“North & Main”), Metro Urban Community Corp. (“Metro”) and Blake Park Housing Co., LLC (“Blake”) (together, the “North & Main Defendants”).

In the Decision, the Court found that BRP's motion should be granted because it had demonstrated that it should not be held liable under theories of successor liability, unjust enrichment and breach of contract for the North & Main Defendants' alleged actions that had occurred over two years earlier (before BRP purchased the property). The Court noted that “given that plaintiff has entirely failed to furnish any opposition to BRP's motion to dismiss, plaintiff has tacitly conceded the dismissal of the Amended Complaint's three causes of action as against BRP.”

With respect to the motion filed by the North & Main Defendants, the Court held that they had “demonstrated, prima facie, that they: (1) did not enter into the Proposed Extension, let alone materially breach any provision thereof; (2) did not materially breach the First Amendment; and (3) were not unjustly enriched at plaintiff's expense in connection with plaintiff's tenancy at the Property.” The Court held that “In opposition, plaintiff has failed to cite the presence of any triable issue of fact that would warrant the denial of summary judgment in favor of the North & Main Defendants with respect to the second and third causes of action.” The Court also noted that “plaintiff's opposition is solely comprised of a terse affirmation from” plaintiff's principal that does not “reflect the presence of a triable issue of fact regarding whether they were unjustly enriched at plaintiff's expense in connection with plaintiff's tenancy at the Property.”

The Court briefly addresses defendants' argument that the motion should be denied because plaintiff failed to attach the necessary papers. This is irrelevant in an e-filed case where all of the documents are available on NYSCEF. While it is better practice to re-upload the documents to save the Court the effort of having to scroll through what can be a voluminous docket to locate documents, it is not a basis for denying a motion. Similarly, while it is required that a combined motion for renewal and reargument “shall identify separately and support separately each item of relief sought,” which plaintiff did not do, this is not necessarily fatal. GMAC Mortg., LLC v. Spindelman, 136 AD3d 1366, 1367, 25 N.Y.S.3d 484, 485 (4th Dept. 2016). Regardless of the procedural deficiencies, the Court addresses the motion on its merits.

The Court first addresses the motion pursuant to CPLR § 2221(e). This section is for motions “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. A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Maher v. WP Galleria Realty, LP, 241 AD3d 813, 815 (2d Dept. 2025). Moreover, “the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion ․ However, evidence is not newly discovered simply because it was not submitted on the prior motion; rather, the evidence must not have been available to the party at the time it made its initial motion and could not have been established through alternate evidentiary means.” Deutsche Bank Nat'l Tr. Co. v. Elshiekh, 179 AD3d 1017, 1020, 118 N.Y.S.3d 183, 187 (2d Dept. 2020) (Emphasis added). Here, plaintiff does not supply any justification for failing to present the emails he now submits on the original motion, let alone a reasonable one. This dooms plaintiff's motion to renew.

As for the motion for reargument, it is long established that such a motion “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion.” Neo Universe Inc. v. Ito, 190 AD3d 426, 135 N.Y.S.3d 637 (1st Dept. 2021). See also Ahmed v. Pannone, 116 AD3d 802, 805, 984 N.Y.S.2d 104, 107 (2d Dept. 2014) (“While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.”). “Here, the court did not overlook or misapprehend the [movant's] arguments.” Vaughn v. Veolia Transp., Inc., 117 AD3d 939, 940, 986 N.Y.S.2d 504, 505 (2d Dept. 2014). Nothing that plaintiff presents on this motion convinces the Court otherwise.

Accordingly, the motion is denied in its entirety.

The foregoing constitutes the decision and order of the Court.¹

FOOTNOTES

1.   All other arguments raised on these two motions and all materials submitted by the parties in connection therewith have been considered by this Court, notwithstanding the specific absence of reference thereto.

Linda S. Jamieson, J.