The following e-filed documents, listed by NYSCEF document number (Motion 002) 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84 were read on this motion to/for VACATE-DECISION/ORDER/JUDGMENT/AWARD. DECISION + ORDER ON MOTION Upon the foregoing documents, it is ordered that the instant motion seeking to vacate a prior Decision/Order, seeking a default judgment against defendant N.Y.C. Department of Finance, and requesting a jury trial is denied for the reasons set forth below. Plaintiff failed to provide a sufficient legal basis to vacate Hon. Anthony Cannataro’s Decision and Order, dated July 8, 2019 (hereinafter referred to as “Prior Decision”) which granted partial summary judgment to defendants and dismissed the following claims from the complaint: the first two causes of action under the Lien Law without prejudice, all claims against defendant Jorge Ramirez in his personal capacity, and the fourth and fifth causes of action under fraud. See Mot. Seq. No. 001, Decision/Order, dated July 8, 2019, p. 2-3. Judge Cannataro also denied plaintiff’s cross-motion for summary judgment regarding his third cause of action for breach of contract, and denied defendants’ dismissal of the same cause of action, finding sufficient issues of fact for a jury on such cause of action. Id. at p. 3. Finally, the Prior Decision dismissed plaintiff’s claims for punitive damages against defendants. Id. at p. 4. Here, plaintiff has failed to proffer a statutory basis upon which he seeks to vacate the Prior Decision. As such, the Court will consider this motion as one to renew and reargue. CPLR §2221(d)(2) permits a party to move for leave to reargue a decision upon a showing that the court misapprehended the law in rendering its initial decision. “A motion for leave to reargue pursuant to CPLR §2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.” William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dep’t 1992), appeal denied in part, dismissed in part 80 NY2d 1005 (1992) (internal quotations omitted). CPLR §2221(d)(3) states that a motion to reargue “shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.” Additionally, a party is permitted to move for leave to renew a decision to assert “new facts not offered on the prior motion that would change the prior determination or…demonstrate that there has been a change in the law that would change the prior determination”. CPLR §2221(e). Plaintiff’s instant motion was filed following two conferences with the Court in which plaintiff requested an opportunity to file a motion. This Court issued an order on June 12, 2023 setting forth a briefing schedule for plaintiff to file an undisclosed motion. After review of the papers, plaintiff’s current motion to reargue is untimely. Here, notice of entry of the Prior Decision was served by defendant Carefree Alarms, Inc. on July 11, 2019 by electronic filing. It is undisputed that plaintiff was served with written notice of entry of the Prior Decision. In fact, plaintiff appealed the Prior Decision, and electronically filed a notice of appeal on August 14, 2019. Plaintiff’s appeal, however, was not timely pursued and was dismissed. Thus, plaintiff had notice of the Prior Decision as of July 2019, and waited until June of 2023 to file the instant motion to reargue. As such, plaintiff’s motion seeking to reargue the Prior Decision is denied. As to the portion of plaintiff’s motion seeking to renew, plaintiff has failed to offer any new facts or a change in the law to support renewal. Accordingly, plaintiff’s motion to renew is denied. Regarding plaintiff’s request for a default judgment against defendant N.Y.C. Department of Finance, the Court notes that plaintiff commenced this action by filing the Summons with Notice in April of 2015. Thereafter, an amended Summons with Notice was filed in May of 2015. A Second Amended Summons and Notice was filed in June of 2015 with a Complaint filed that same day. In September of 2018, plaintiff filed the Note of Issue certifying that this action was ready for trial. Now, for the first time, plaintiff filed the instant motion in June of 2023 seeking a default judgment. CPLR §3215(c) states that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” Here, plaintiff has wholly failed to proffer any explanation as to why he waited eight (8) years to move for a default judgment against defendant N.Y.C. Department of Finance. As such, the complaint is hereby dismissed as against defendant N.Y.C. Department of Finance only, and the portion of plaintiff’s motion seeking a default judgment is denied. As to the portion of plaintiff’s motion seeking a jury trial, a jury trial is hereby scheduled for June 24, 2024. Accordingly, it is ORDERED that plaintiff’s motion to vacate is denied in its entirety; and it is further ORDERED that plaintiff’s motion for a default judgment is denied in its entirety; and it is further ORDERED that the complaint is hereby dismissed in its entirety as against defendant N.Y.C. Department of Finance, without costs, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining defendant Carefree Alarms, Inc.; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the Court bear the amended caption; and it is further ORDERED that counsel for defendant Carefree Alarms Inc. shall serve a copy of this Decision/Order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that all parties shall appear for trial on June 24, 2024. Parties must appear in room 422 of 60 Centre Street, New York, NY 10007 at 9:30am on June 24, 2024 and be prepared to select a jury and commence trial; and it is further ORDERED that within 30 days of entry defendant Carefree Alarms, Inc. shall serve all parties with a copy of this Decision/Order with notice of entry. This constitutes the Decision/Order of the Court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 1, 2024
