Preview
FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X Index No.: 154633/2021
THE COLUMBIA CONDOMINIUM, BY ITS
BOARD OF MANAGERS,
Plaintiffs,
-against-
MOTION TO RENEW AND
REARGUE
IR 96TH ST HOLDINGS LLC, NEW YORK CITY
DEPARTMENT OF FINANCE, NEW YORK
STATE DEPARTMENT OF TAXATION &
FINANCE, FARRIN B. ULLAH a/k/a FARRIN
ULLAH a/k/a ENTEZARI F. ULLA a/k/a
ENTEZARI ULLAH a/k/a FARRIN E. ULLAH,
“JOHN DOE” and “JANE DOE and “ABC
CORP.” the true names of said defendants being
unknown to plaintiff, the parties intended to be the
persons or entities having or claiming an interest in
the premises described in the complaint by virtue of
being a tenant or occupant in all or part of said
premises,
Defendants.
------------------------------------------------------------------------X
Defendant IR 96TH ST Holdings, LLC, hereby moves for an entry of an Order by
the Court for entry of an Order to allow Defendant to renew and reargue Plaintiff’s motion
for summary judgment. In support of this motion, Defendant states as follows:
1. Undersigned counsel entered his appearance for IR 96TH ST Holdings, LLC on
August 12, 2022. (See Exhibit A)
2. Plaintiff’s hearing on their Motion for Summary Judgment was scheduled for
August 29, 2022 and Opposition Papers were due on August 12, 2022. (See Exhibit
B)
3. Defendant requested an extension of time on August 12, 2022. Undersigned
Counsel had just been retained for the matter.
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4. On September 26, 2022, this Court entered an Order granting Plaintiff’s Motion for
Summary Judgment, noting that Defendant did not oppose the motion. (See Exhibit
C)
5. Defendant is requesting to reargue this motion pursuant to CPLR 2221(d).
6. A motion to reargue may only be made based on matters of fact or law that were
presented by the parties.
7. Undersigned Counsel filed a letter to the Court and a Motion for Continuance, since
Undersigned Counsel had been retained the same day. (See Exhibit D and E).
8. These filings were overlooked in this Court’s decision on Plaintiff’s Motion.
9. This request is being duly made within thirty days after this Court’s order pursuant
to CPLR 2221(d)(3).
10. "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" Matter
of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820.
11. Within the Motion for Summary Judgment, Defendant duly made a request for an
extension of time, by letter and by motion, since opposition was due on the same
day that Undersigned Counsel was retained. The Court never responded to these
requests, either to affirm or deny the request.
12. Therefore, this Court has never decided Defendant’s requests.
13. Defendant further requests for renewal on the basis of CPLR 2221(e)(2).
14. A motion to renew must be based upon new facts not offered on the prior motion
that would change the determination, and contain reasonable justification for the
failure to present these facts on the prior motion. CPLR 2221(e)(2 - 3).
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15. Motions to renew are granted sparingly, and only when there exists a valid excuse
for the failure to submit the information at the time of the original motion. Foley v
Roche, 68 AD2d 558, 568).
16. Plaintiffs, in their Motion for Summary Judgment, state that Defendant asserted no
affirmative defenses in their Complaint and requested for Defendant’s answer to be
stricken.
17. Defendant does not dispute Plaintiff’s claim. Instead, Defendant states that the
answer as filed by Defendant’s prior counsel is defective.
18. Included as Exhibit F is Defendant’s Motion to Amend its Answer, which
Defendant would file with this Court.
19. The Complaint filed by Defendant’s prior Counsel is clearly deficient, both failing
to deny claims made by Plaintiff and failing to respond with affirmative defenses.
20. The agreement provided by Plaintiff clearly states that an LLC that owns a
residential unit may be used by its members.
21. This Court held that Defendant Farrin Ullah is only an occupant of the premises.
22. As explained in our attached Motion to Amend the Answer, Defendant Farrin Ullah
is not just the occupant, but was at all times either a part owner or full owner of
Defendant. As stated by Plaintiff’s own attached Condominium By Laws,
Defendant had the right to have its members and officers and as such Defendant
Farrin Ullah use and enjoy the premises.
23. Plaintiff demanded that Defendant lease the premises to their owner so that they
could issue a right of first refusal and deny Defendant their right to the property. A
lease was never unnecessary, since a lease existed between Plaintiff and Defendant,
and Defendant Farrin Ullah was a part owner of Defendant.
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24. Defendant intended to allow Farrin Ullah, a part-owner of the LLC to occupy the
premises. Plaintiff blocked Ms. Ullah from occupation in violation of the
Agreement between the parties. This is a clear violation of their Agreement.
25. Therefore, Defendant has both affirmative defenses and counterclaims in response
to Plaintiff’s breach.
26. Defendant had no reason to believe that there were any issues with the work of their
previous counsel.
27. Undersigned Counsel was unaware of this information at the time of the deadline
for Defendant to respond to the Motion for Summary Judgment. Undersigned
Counsel was retained right as the response was due; it was not possible to ascertain
the deficiencies within such a short time frame.
28. These requirements, however, are flexible and the Court, in its discretion, may also
grant renewal, in the interest of justice, upon facts which were known to the movant
at the time the original motion was made Liberty Mut. Ins. Co. v Allstate Ins. Co.,
237 AD2d 260; See also Vayser v Waldbaum, 225 AD2d 760.
29. Further Courts have held that even if the intensive requirements for renewal are not
met, such relief may be properly granted so in the interest of substantive justice.
Metcalfe v City of New York, 223 AD2d 410, 411, quoting Lambert v Williams,
218 AD2d 618, 621.
30. Here, even Defendant has not reached the bar required, or this Court determines that
it should have known to amend its answer right away, it would be unjust for this
Court for Defendant to be punished when it has defenses that were and are available
at their disposal, but were not made at the time by their prior counsel.
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WHEREFORE, the Defendant IR 96TH ST Holdings, LLC request this Court for entry of
an Order to allow Defendant to renew and reargue Plaintiff’s motion for summary judgment and
for a stay of the original decision for eviction and collection.
Dated: Brooklyn, New York
October 18, 2022 Respectfully Submitted,
/s/ Mikhail Usher__________
Mikhail Usher, Esq.
USHER LAW GROUP P.C
1022 Avenue P, 2 nd Fl.
Brooklyn, New York 11223
Phone: (718) 484-7510
E-mail: musheresq@gmail.com
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Preview
FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X Index No.: 154633/2021 THE COLUMBIA CONDOMINIUM, BY ITS BOARD OF MANAGERS, Plaintiffs, -against- MOTION TO RENEW AND REARGUE IR 96TH ST HOLDINGS LLC, NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DEPARTMENT OF TAXATION & FINANCE, FARRIN B. ULLAH a/k/a FARRIN ULLAH a/k/a ENTEZARI F. ULLA a/k/a ENTEZARI ULLAH a/k/a FARRIN E. ULLAH, “JOHN DOE” and “JANE DOE and “ABC CORP.” the true names of said defendants being unknown to plaintiff, the parties intended to be the persons or entities having or claiming an interest in the premises described in the complaint by virtue of being a tenant or occupant in all or part of said premises, Defendants. ------------------------------------------------------------------------X Defendant IR 96TH ST Holdings, LLC, hereby moves for an entry of an Order by the Court for entry of an Order to allow Defendant to renew and reargue Plaintiff’s motion for summary judgment. In support of this motion, Defendant states as follows: 1. Undersigned counsel entered his appearance for IR 96TH ST Holdings, LLC on August 12, 2022. (See Exhibit A) 2. Plaintiff’s hearing on their Motion for Summary Judgment was scheduled for August 29, 2022 and Opposition Papers were due on August 12, 2022. (See Exhibit B) 3. Defendant requested an extension of time on August 12, 2022. Undersigned Counsel had just been retained for the matter. 1 of 5 FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022 4. On September 26, 2022, this Court entered an Order granting Plaintiff’s Motion for Summary Judgment, noting that Defendant did not oppose the motion. (See Exhibit C) 5. Defendant is requesting to reargue this motion pursuant to CPLR 2221(d). 6. A motion to reargue may only be made based on matters of fact or law that were presented by the parties. 7. Undersigned Counsel filed a letter to the Court and a Motion for Continuance, since Undersigned Counsel had been retained the same day. (See Exhibit D and E). 8. These filings were overlooked in this Court’s decision on Plaintiff’s Motion. 9. This request is being duly made within thirty days after this Court’s order pursuant to CPLR 2221(d)(3). 10. "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" Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d at 820. 11. Within the Motion for Summary Judgment, Defendant duly made a request for an extension of time, by letter and by motion, since opposition was due on the same day that Undersigned Counsel was retained. The Court never responded to these requests, either to affirm or deny the request. 12. Therefore, this Court has never decided Defendant’s requests. 13. Defendant further requests for renewal on the basis of CPLR 2221(e)(2). 14. A motion to renew must be based upon new facts not offered on the prior motion that would change the determination, and contain reasonable justification for the failure to present these facts on the prior motion. CPLR 2221(e)(2 - 3). 2 of 5 FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022 15. Motions to renew are granted sparingly, and only when there exists a valid excuse for the failure to submit the information at the time of the original motion. Foley v Roche, 68 AD2d 558, 568). 16. Plaintiffs, in their Motion for Summary Judgment, state that Defendant asserted no affirmative defenses in their Complaint and requested for Defendant’s answer to be stricken. 17. Defendant does not dispute Plaintiff’s claim. Instead, Defendant states that the answer as filed by Defendant’s prior counsel is defective. 18. Included as Exhibit F is Defendant’s Motion to Amend its Answer, which Defendant would file with this Court. 19. The Complaint filed by Defendant’s prior Counsel is clearly deficient, both failing to deny claims made by Plaintiff and failing to respond with affirmative defenses. 20. The agreement provided by Plaintiff clearly states that an LLC that owns a residential unit may be used by its members. 21. This Court held that Defendant Farrin Ullah is only an occupant of the premises. 22. As explained in our attached Motion to Amend the Answer, Defendant Farrin Ullah is not just the occupant, but was at all times either a part owner or full owner of Defendant. As stated by Plaintiff’s own attached Condominium By Laws, Defendant had the right to have its members and officers and as such Defendant Farrin Ullah use and enjoy the premises. 23. Plaintiff demanded that Defendant lease the premises to their owner so that they could issue a right of first refusal and deny Defendant their right to the property. A lease was never unnecessary, since a lease existed between Plaintiff and Defendant, and Defendant Farrin Ullah was a part owner of Defendant. 3 of 5 FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022 24. Defendant intended to allow Farrin Ullah, a part-owner of the LLC to occupy the premises. Plaintiff blocked Ms. Ullah from occupation in violation of the Agreement between the parties. This is a clear violation of their Agreement. 25. Therefore, Defendant has both affirmative defenses and counterclaims in response to Plaintiff’s breach. 26. Defendant had no reason to believe that there were any issues with the work of their previous counsel. 27. Undersigned Counsel was unaware of this information at the time of the deadline for Defendant to respond to the Motion for Summary Judgment. Undersigned Counsel was retained right as the response was due; it was not possible to ascertain the deficiencies within such a short time frame. 28. These requirements, however, are flexible and the Court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made Liberty Mut. Ins. Co. v Allstate Ins. Co., 237 AD2d 260; See also Vayser v Waldbaum, 225 AD2d 760. 29. Further Courts have held that even if the intensive requirements for renewal are not met, such relief may be properly granted so in the interest of substantive justice. Metcalfe v City of New York, 223 AD2d 410, 411, quoting Lambert v Williams, 218 AD2d 618, 621. 30. Here, even Defendant has not reached the bar required, or this Court determines that it should have known to amend its answer right away, it would be unjust for this Court for Defendant to be punished when it has defenses that were and are available at their disposal, but were not made at the time by their prior counsel. 4 of 5 FILED: NEW YORK COUNTY CLERK 10/20/2022 12:44 PM INDEX NO. 154633/2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 10/20/2022 WHEREFORE, the Defendant IR 96TH ST Holdings, LLC request this Court for entry of an Order to allow Defendant to renew and reargue Plaintiff’s motion for summary judgment and for a stay of the original decision for eviction and collection. Dated: Brooklyn, New York October 18, 2022 Respectfully Submitted, /s/ Mikhail Usher__________ Mikhail Usher, Esq. USHER LAW GROUP P.C 1022 Avenue P, 2 nd Fl. Brooklyn, New York 11223 Phone: (718) 484-7510 E-mail: musheresq@gmail.com 5 of 5