Opinion
Index No. 511407/2021 Motion Seq. 4
02-23-2023
JESAN CONSTRUCTION GROUP LLC, Plaintiff, v. MEDFORD BER LLC AND DAVID LEVI~E, Defendants,
Unpublished Opinion
DECISION AND ORDER
HON. LEON RUCHELSMAN, JSC
The plaintiff has moved pursuant to CPLR §2221 seeking to renew a decision and order dated February 24;, 2022 which dismissed the complaint on the grounds the plaintiff did not maintain standing to commence the action. The; defendants oppose the motion. After reviewing all the arguments: this court now makes the following determination.
As recorded in the prior Order, the court held that an assignment of contract wherein the plaintiff, assigned its rights and interests to another entity foreclosed the plaintiff's right to commence this action. The court held the plaintiff's assertion the assignment contained a forgery failed to raise any question of fact since such a bald, assertion is Insufficient, to defeat a motion to dismiss. Upon renewal, the plaintiff argues that evidence unavailable until now demonstrates: that indeed the assignment was nullified. Consequently,, the complaint .should not be dismissed and the parties should proceed with discovery. The plaintiff has- opposed the motion arguing the. newly discovered evidence fails to raise any question regarding the assignment and therefore the motion seeking renewal should be denied..
Conclusions of Law
It is true that generally, a motion to renew must contain evidence that existed at the time the original motion was filed but was unknown to the moving party (Brooklyn Welding Corp., v. Chin, 236 A.D.2d 392., 653 N.Y.S.2d 631 [2d Dept., 1997]). However, that rule has been, defined. as 'flexible'' and. a party may file .a motion to renew even- if the .evidence was known at the time of the original motion provided the party offers a. reasonable explanation why the additional facts were: not included within the original motion (Progressive Northeastern Insurance Company v. Frenkel, 8 A.D.3d 390, 777 N.Y.S.2d 652 [2d Dept., 2004]).
As noted in the prior order the plaintiff is a contractor who was hired by the defendant Medford Ber on September 15, 2017 to perform certain construction work, at property located at.. 99 and 101 Granite Street in Kings County. The assignment of contract to ABC Select NY. Inc., is also dated September IS, 2pl7. The new evidence presented consists, of a document dated October 2, 2017 which is: executed by tooth the plaintiff and ABC Select NY Inc., nullifying the assignment of. contract. The defendants argue that although the contract and the. assignment are dated September 15, 2017 they were in actuality signed in November 2017 and thus, the document dated. October 2, 207 nullifying the assignment is itself a nullity since it pre-dates the actual assignment. However, there is no evidence supporting the assertion the assignment was not executed on. September 1.5, 2017. It is true that the assignment was not emailed to the parties.. until November 21, 2017, however, that does not mean it had not been signed until that date. The defendant David Levins asserts that "on November 14, 2017, I emailed Mr. Rosenfeld and asked him where we were on getting the assignment signed" (see, Affidavit of David Levine, ¶ 12 [NYSCEF Dog. No. 73]). In a footnote Mr. Levine clarifies that "I wrote: "Where are we oh getting the assignment changed." The word "changed" was a typo. I meant to write "signed."" (id). In any event, that affidavit does not conclusively establish the assignment had not been executed by then, merely that the defendant had not received a copy of such assignment by then, Indeed, there is a presumption that a contract is executed, on the date the contract bears (See, Le Valley v. Overacker, 64 AD 612, 72, NYS 12 [3rd Dept., 1901]). Of course, the defendant may rebut that presumption with competent evidence, however, it cannot be said as a matter of: law that any revocation of the assignment is invalid. Whether the assignment was executed on the date it bears and whether the nullification of the assignment was valid are questions that must be tested by discovery. Therefore, based on the foregoing;, the motion to renew is granted and upon the motion to renew, the motion seeking to., dismiss the lawsuit is denied. The parties must now proceed with discovery.
So ordered.