FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 605743/2020
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`RECEIVED NYSCEF: 11/10/2021
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`Plaintiff,
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`-against-
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`Index No.: 605743/2020
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
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`THE BOARD OF MANAGERS OF THE OCEAN
`LANDING CONDOMINIUM,
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`MICHAEL H. NELSON, NEW YORK STATE
`DEPARTMENT OF TAXATION AND FINANCE,
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`“JOHN DOE #1” through “JOHN DOE #12”, the last
`twelve names being fictitious and unknown to plaintiff, the
`persons or parties intended being the tenants, occupants,
`persons or corporations, if any, having or claiming an
`interest in or lien upon the premises,
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`Defendants.
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`DEFENDANT MICHAEL H. NELSON’S
`MEMORANDUM OF LAW IN OPPOSITION TO
`PLAINTIFF’S MOTION TO REARGUE AND RENEW
`THE COURT’S SEPTEMBER 22, 2021 DECISION AND ORDER
`DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
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`LAW OFFICE OF MARC M. ISAAC PLLC
`34 Willis Avenue
`Mineola, New York 11501
`(516) 750-1422
`Attorney for Defendant Michael H. Nelson
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 605743/2020
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`RECEIVED NYSCEF: 11/10/2021
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`PRELIMINARY STATEMENT
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`This memorandum of law is respectfully submitted by defendant Michael H.
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`Nelson (“Nelson”) in opposition to plaintiff The Board of Managers of The Ocean Landing
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`Condominium’s (the “Board” or “Plaintiff”) motion for an order granting reargument and
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`renewal and upon reargument and renewal, rescinding the September 22, 2021 Decision and
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`Order (the “Decision and Order”)1 denying the motion for summary judgment to the extent that
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`plaintiff had not made a prima facie case and in its place issuing an decision granting summary
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`judgment to plaintiff, striking the answer of defendant Michael H. Nelson but without changing
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`the portion thereof setting a traverse hearing.
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`The Board’s motion for leave to reargue and renew its motion for summary
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`judgment is completely devoid of merit. The portion of the Board’s motion seeking leave to
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`renew should be denied. A motion for leave to renew pursuant to CPLR 2221(e) must “be based
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`upon new facts not offered on the prior motion that would change the prior determination or shall
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`demonstrate that there has been a change in the law that would change the prior determination.”
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`CPLR 2221(e). A motion for leave to renew pursuant to CPLR 2221(e) must also “contain
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`reasonable justification for the failure to present such facts on the prior motion.” Id. The Board
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`is not entitled to leave to renew because it has not presented new facts not offered on the prior
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`motion that would change the prior determination. The Board is also not entitled to leave to
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`renew because it has not presented reasonable justification for its failure to present such facts on
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`the prior motion. The Board’s attorney’s conclusory, undetailed, and uncorroborated claim of
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`1 The Decision and Order is attached as Exhibit B to the Affirmation of Bruce J. Bergman, Esq.
`in Support of Plaintiff’s Motion to Renew and Reargue Summary Judgment.
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 605743/2020
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`law office failure does not amount to reasonable justification.
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`Even if the Court granted the Board’s motion for leave to renew (which it should
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`not), the Board’s motion for summary judgment should still be denied. The Board has failed to
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`make a prima facie showing of its entitlement to judgment as a matter of law. The by-laws that
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`the Board attached to its motion for leave to reargue and renew are not the by-laws of The Ocean
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`Landing Condominium. They are the by-laws of The 475 West Broadway Condominium. The
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`Board has failed to establish that the by-laws of The 475 West Broadway Condominium were in
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`effect or are in any way applicable with respect to the claims that the Board has asserted against
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`Nelson on behalf of The Ocean Landing Condominium.
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`The portion of the Board’s motion seeking leave to reargue is frivolous. A
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`motion for leave to reargue pursuant to CPLR 2221(d) must “be based upon matters of fact or
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`law allegedly overlooked or misapprehended by the court in determining the prior motion, but
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`shall not include any matters of fact not offered on the prior motion.” CPLR 2221(d). The
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`Board is not entitled to leave to reargue because it has not even attempted to allege that the Court
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`overlooked or misapprehended a matter of fact or law.
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`I.
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`THE BOARD’S MOTION FOR LEAVE TO RENEW SHOULD BE DENIED
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`The Board’s motion for leave to renew should be denied. “A motion for leave to
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`renew shall be based upon new facts not offered on the prior motion that would change the prior
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`determination and shall contain reasonable justification for the failure to present such facts on the
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`prior motion.” Bank of N.Y. Mellon Trust Co., N.A. v. Talukder, 176 A.D.3d 772, 773 (2d
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`Dept. 2019) quoting Robinson v. Viani, 140 A.D.3d 845, 848 (2d Dept. 2016) quoting Lindbergh
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`v. SHLO 54, LLC, 128 A.D.3d 642, 644-645; see CPLR 2221(e)(2), (3) (internal quotations
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`omitted).
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`“While a court has discretion to entertain renewal based on facts known to the
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`movant at the time of the original motion, the movant must set forth a reasonable justification for
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`the failure to submit the information in the first instance.” Professional Offshore Opportunity
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`Fund, Ltd. v. Braider, 121 A.D.3d 766, 769 (2d Dept. 2014); see Deutsche Bank Trust Co. v.
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`Ghaness, 100 A.D.3d 585, 586 (2d Dept. 2012) (“a ‘reasonable justification’ for the failure to
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`present such facts on the original motion must be presented”).
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`“When no reasonable justification is given for failing to present new facts on the
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`prior motion, the Supreme Court lacks discretion to grant renewal.” Zelouf Intl. Corp. v.
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`Rivercity, LLC, 123 A.D.3d 1116, 1116 (2d Dept. 2014); see Worrell v. Parkway Estates, LLC,
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`43 A.D.3d 436 (2d Dept. 2007) (“[t]he Supreme Court lacks discretion to grant renewal where
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`the moving party omits a reasonable justification for failing to present the new facts on the
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`original motion”).
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`“Law office failure can be accepted as a reasonable excuse in the exercise of the
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`court's sound discretion.” Bank of N.Y. Mellon Trust Co., 176 A.D.3d at 775 quoting Nwauwa
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`v. Mamos, 53 A.D.3d 646, 649 (2d Dept. 2008); see CPLR §2005. “’Although a court has the
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`discretion to accept law office failure as a reasonable excuse, a conclusory, undetailed and
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`uncorroborated claim of law office failure does not amount to a reasonable excuse.’” Bank of
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`N.Y. Mellon Trust Co., 176 A.D.3d at 774 quoting Eastern Sav. Bank, FSB v. Charles, 103
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`A.D.3d 683, 684 (2d Dept. 2013).
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
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`INDEX NO. 605743/2020
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`The Board’s motion for leave to renew should be denied because it is not based
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`on new facts not available at the time of the original motion. The Board’s motion for summary
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`judgment was denied because it failed to provide the Court with a copy of by-laws establishing
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`the Board’s authority to collect alleged unpaid charges from Nelson. See Decision and Order at
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`p. 2. The Board’s motion for leave to renew is premised upon its production of purported by-
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`laws that it referenced, and was aware of, but failed to provide to the Court in support of its
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`motion for summary judgment. The by-laws submitted by the Board in support of its motion for
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`leave to renew were not unavailable or unknown to the Board at the time it filed its motion for
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`summary judgment. Therefore, the Board’s motion for leave to renew should be denied because
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`it “failed to establish that the alleged new evidence was not available at the time of the original
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`motion.” Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 982 (2d Dept. 2015).
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`The Board has also failed to provide reasonable justification for its failure to
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`provide the Court with by-laws in support of its motion for summary judgment. The Board’s
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`attorney, Bruce J. Bergman, Esq., plainly admits in his affirmation that his firm’s failure to annex
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`a copy of by-laws to the Board’s complaint or the Board’s motion for summary judgment was
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`the product of mere “[n]eglect.” See Affirmation in Support of Plaintiff’s Motion to Renew and
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`Reargue Summary Judgment (“Bergman Aff.”) at ¶6. Mr. Bergman’s conclusory, undetailed,
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`and uncorroborated claim of neglect does not constitute a reasonable excuse under CPLR §2005.
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`“Mere neglect will not be accepted as a reasonable excuse under CPLR 2005.” JP Morgan
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`Chase Bank, N.A. v. Russo, 121 A.D.3d 1048, 1049 (2d Dept. 2014) citing Ortega v. Bisogno &
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`Meyerson, 38 A.D.3d 510, 511 (2d Dept. 2007) (“’[w]hile CPLR 2005 allows courts to excuse a
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`default due to law office failure, it was not the Legislature's intent to routinely excuse such
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`defaults, and mere neglect will not be accepted as a reasonable excuse’”).
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`Given that the Board has not presented reasonable justification for failing to
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`provide the Court with by-laws on the prior motion, “the Supreme Court lacks discretion to grant
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`renewal.” Zelouf Intl. Corp., 123 A.D.3d at 1116; see Matter of Leone Props., LLC v. Bd. of
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`Assessors for Town of Cornwall, 81 A.D.3d 649, 651-2 (2d Dept. 2011) (affirming denial of
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`motion for leave to renew where appellants failed to demonstrate reasonable justification for
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`failing to provide the Court with facts known to them at the time of their prior motion).
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`Even assuming, for the sake of argument, that the Board did have reasonable
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`justification for failing to previously submit the by-laws it annexed to its motion for leave to
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`reargue and renew, its motion for leave to renew still should be denied. The Board has not
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`provided an explanation of how the by-laws of The 475 West Broadway Condominium that it
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`failed to submit previously would have changed the Court’s determination denying the motion
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`for summary judgment the Board filed to collect alleged unpaid charges owed to The Ocean
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`Landing Condominium. See Affidavit in Support of Motion to Renew and Reargue Summary
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`Judgment (“Brandenberger Aff.”) at Ex. A; CPLR 2221(e)(2); Giovanni v Moran, 34 A.D.3d
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`733, 733 (2d Dept. 2006) (“The court providently exercised its discretion in denying the
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`defendant's cross motion for leave to renew because he failed to present ‘new facts’ which were
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`unavailable at the time of the original motion and which would change the prior determination”);
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`Town House St., LLC v New Fellowship Full Gospel Baptist Church, Inc., 29 A.D.3d 894, 695
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`(2d Dept. 2006) (same). The Board’s motion for leave to renew should be denied because it has
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`made no showing demonstrating that the by-laws of The 475 West Broadway Condominium are
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`applicable to the claims it has asserted in this action.
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
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`II.
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`THE BOARD’S MOTION FOR SUMMARY JUDGEMENT SHOULD BE DENIED
`EVEN IF THE BOARD’S MOTION FOR LEAVE TO RENEW IS GRANTED
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`Even if the Board’s motion for leave to renew were to be granted (which it should
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`not be), the Board’s motion for summary judgment should still be denied. The Board has not
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`made a prima facie showing of entitlement to summary judgment. The by-laws the Board
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`presented to the Court in support of its motion for leave to renew are the by-laws of The 475
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`West Broadway Condominium, and not the by-laws of The Ocean Landing Condominium. See
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`Brandenberger Aff. at Ex. A. The papers submitted in support of the Board’s motion for leave to
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`reargue and renew do not contain an explanation of why The 475 West Broadway
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`Condominium’s by-laws have been submitted in this proceeding commenced by the Board
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`against Nelson on behalf of The Ocean Landing Condominium or in what way The 475 West
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`Broadway Condominium’s by-laws are effective or applicable with respect to the claims asserted
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`by the Board in this action.
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`By its bare and unexplained submission of the by-laws of The 475 West
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`Broadway Condominium, and not those of The Ocean Landing Condominium, the Board has for
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`the second time not established its entitlement to summary judgment because it has not provided
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`“the requisite evidence of its authority to collect the alleged unpaid charges” on behalf of The
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`Ocean Landing Condominium. Decision and Order at p. 2. The Board has not made “a prima
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`facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
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`demonstrate the absence of any material issues of fact.” Alvarez v. Prospect Hosp., 68 N.Y.2d
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`320, 324 (1986). The Board’s “Failure to make such showing requires denial of the motion,
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`regardless of the sufficiency of the opposing papers.” Winegrad v. NY Univ. Med. Ctr., 64
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`N.Y.2d 851, 853 (1985).
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
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`III.
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`THE BOARD’S MOTION FOR LEAVE TO REARGUE SHOULD BE DENIED
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`There is absolutely no basis to grant the Board’s motion for leave to reargue. A
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`motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or
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`misapprehended by the court in determining the prior motion, but shall not include any matters
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`of fact not offered on the prior motion.” Rodriguez v. Gutierrez, 138 A.D.3d 964, 966 (2d Dept.
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`2016) quoting CPLR 2221(d)(2) citing Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dept.
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`2014); Matter of Anthony J. Carter, DDS, P.C. v. Carter, 81 A.D.3d 819, 820, (2d. Dept. 2011]).
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`“A motion for leave to reargue is not designed to provide an unsuccessful party
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`with successive opportunities to reargue issues previously decided or to present arguments
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`different from those originally presented.” Flanagan v. Delaney, 194 A.D.3d 694, 698 (2d Dept.
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`2021) citing Matter of Anthony J. Carter, 81 A.D.3d at 820.
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`The Board has not alleged that the Court overlooked or misapprehended the
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`relevant facts or law. Therefore, the Board has not provided any justification for the Court to
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`grant, or even seriously consider, the Board’s motion for leave to reargue. See CPLR
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`2221(d)(2); V. Veeraswamy Realty v. Yenom Corp. , 71 A.D.3d 874 (2d Dept. 2010) (finding
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`that it was an improvident exercise of discretion for the Court to grant leave to reargue where
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`plaintiff made no effort to “demonstrate to the court in what manner it had either overlooked or
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`misapprehended the relevant facts or law”); Degraw Constr. Group, Inc. v. McGowan Bldrs.,
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`Inc. , 178 A.D.3d 772, 773 (2d Dept. 2019) (“[t]he Supreme Court improvidently exercised its
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`discretion in granting the plaintiff's motion for leave to reargue, since the plaintiff failed to show
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`that the court overlooked or misapprehended the relevant facts or misapplied any controlling
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`principle of law”).
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`CONCLUSION
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`For the foregoing reasons, Plaintiff’s motion should be denied in its entirety,
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`together with such other and further relief as the Court deems just and proper.
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`Dated:
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`Freeport, New York
`November 10, 2021
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` LAW OFFICE OF MARC M. ISAAC PLLC
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` /s/ Marc M. Isaac
`By:
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` MARC M. ISAAC
`34 Willis Avenue
`Mineola, New York 11501
`(516) 750-1422
`Attorney for Defendant Michael H. Nelson
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`FILED: NASSAU COUNTY CLERK 11/10/2021 02:09 PM
`NYSCEF DOC. NO. 62
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`INDEX NO. 605743/2020
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`CERTIFICATION
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`I, Marc M. Isaac, certify that the number of words in this memorandum of law
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`complies with 22 NYCRR §202.8-b, and contains 2,170 words, excluding the caption, table of
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`contents, table of authorities, and signature block.
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`Freeport, New York
`November 10, 2021
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`Dated:
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` /s/ Marc M. Isaac
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` MARC M. ISAAC
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