| Neo Universe Inc. v Ito |
| 2021 NY Slip Op 00026 |
| Decided on January 05, 2021 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: January 05, 2021
Before: Webber, J.P., Singh, Kennedy, Shulman, JJ.
Index No. 602175/06 Appeal No. 12791N Case No. 2020-02921
v
Takanobu Ito, Defendant-Respondent.
McGovern Doherty & Kim, PLLC, New York (Kyu O. Kim of counsel), for appellants.
Law Office of Paul F. Condzal, New York (Paul F. Condzal of counsel), for respondent.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered December 11, 2018, which granted defendant's motion for reargument, and, upon reargument, directed the Clerk to vacate the money judgment, same court and Justice, entered March 26, 2018, in plaintiffs' favor and to dismiss the action with prejudice, unanimously reversed, on the law and the facts, with costs, and the motion denied. The Clerk is directed to reinstate the March 26, 2018 judgment.
The court improvidently exercised its discretion in granting defendant's motion for reargument (see CPLR 2221[d]; Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]). A motion for reargument "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion" (CPLR 2221[d][2]). There was no prior motion sought to be reargued. Nor did the court overlook or misapprehend anything in its prior ruling, and the resulting judgment, which entailed a straightforward mathematical calculation to arrive at the amount owing to plaintiffs under the loan. It appears that defendant's arguments in support of the motion were directed at undermining and circumventing this Court's decision in a prior appeal, rather than at genuine reargument (see Neo Universe Inc. v Ito, 147 AD3d 682, 683 [1st Dept 2017]).
We have considered defendant's remaining arguments in support of affirmance and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: January 5, 2021