JAMES CARTER CRYSTAL CASH v. 40 44 LLC WARBURG REALTY PARTNERSHIP LTD CHARLIE LEWIS ALICIA CORPENING SHUPACK HARDY LLP JEFFREY SHUPACK SHERYL JASSEN (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 009) 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298 ere read on this motion for RENEWAL.

Upon the foregoing documents, it is ordered that this motion is denied.

A motion for leave to reargue, addressed to the sound discretion of the court, may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (CPLR 2221 [d] [2]; Frenchman v Lynch, 97 AD3d 632, 633 [2d Dept 2012]; William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992], rearg denied 81 NY2d 782 [1993]; Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]). Reargument 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" (McGill v Goldman, 261 AD2d 593, 594 [2d Dept 1999]; see also Levi v Utica First Ins. Co., 12 AD3d 256, 258 [1st Dept 2004]).

Here, plaintiff has failed to demonstrate that the court misapprehended or overlooked the facts or the law. The Shupack Defendants assert that "Cash's claims asserted herein are identical to those asserted by plaintiffs Timothy Lloyd Mah ("Mah") and James M. Carter III ("Carter") as against sponsor and their closing attorney"; and, "the First Department's determination as to a lack of causation and damages constitutes a change in the law of the case that warrants renewal of the Shupack defendant's prior motion for summary judgment." Defendants' arguments are incorrect. Plaintiff Cash's legal malpractice claim against the Shupack defendants is not identical to the claims of her co-plaintiffs against their attorney, nor is the First Department's determination "a change in the law of the case" relative to Cash's claims.

Unlike the deck sold to her co-plaintiffs, the roof deck purchased by Cash was complete as of the date of her closing. Therefore, the purportedly erroneous legal advice given her by the Shupack defendants regarding the legal status of the deck was not speculative or otherwise mitigated by an intervening event.

In other words, the Appellate Division's finding "[t]he Sponsor's alleged breach of contract was 'independent of or far removed from [defendant attorney's] conduct,' and thus, severed any proximate cause flowing from her representation" is not a "change in the law," as asserted by defendants herein. The Appellate Division made a determination specific to the facts relevant to the different parties' claims against a different defendant and, as noted herein, the facts relevant to Cash's claims against the Shupack defendants are materially different and distinguishable.

Accordingly, it is

ORDERED that plaintiff's motion for leave to reargue is denied.

12/22/2022

ROBERT R. REED, J.S.C.

Robert R. Reed, J.