Plaintiff moves for leave to renew or reargue, pursuant to CPLR Rule 2221, this Court's September 25, 2009 short-form decision and order, which denied plaintiff's order to show cause to vacate plaintiff's counsel's default on July 10, 2009. The July 10, 2009 default resulted in this Court vacating a default judgment against defendant and dismissal of the instant action. Defendant's counsel opposes the instant motion and cross-moves for costs in opposing the instant action, claiming that plaintiff's instant motion is frivolous, pursuant to 22 NYCRR § 130-1.1

Both plaintiff's motion and defendant's cross-motion are denied.

Plaintiff SAMUEL COHEN (COHEN), on May 9, 1997, obtained a default judgment in this action against defendant ELIHU ROMANOFF (ROMANOFF) for $26,868.25. The [*2]judgment was unsatisfied. It is undisputed that COHEN died in November 1997, in Maryland, after entry of the $26,868.25 judgment, and COHEN's son, DAVID COHEN, was appointed as personal representative of the Estate of SAMUEL COHEN, deceased.

Defendant ROMANOFF, on April 20, 2009, moved to vacate the subject May 9, 1997 default judgment against him, asserting that: service of process was improperly effected upon him; and, plaintiff COHEN's November 1997 death, subsequent to entry of the judgment ended his attorney's authority to act as plaintiff's counsel. Although plaintiff's counsel submitted opposition papers to the Court and served a copy upon defendant, COHEN's attorney failed to answer the July 10, 2009 motion calendar call. Instead, plaintiff's counsel appeared in an adjacent courtroom and did not learn of his mistake until after I issued my July 10, 2009 short-form order. The July 10, 2009 order granted, upon default of plaintiff, defendant ROMANOFF's motion to vacate his default and dismiss the instant action.

Subsequently, plaintiff's counsel moved, by order to show cause, to vacate his July

10, 2009 default and the order entered as a result of his default. The attorneys for both plaintiff and defendant appeared, on September 25, 2009, for oral argument on plaintiff's order to show cause. After hearing oral argument and reviewing the papers submitted, I issued a short-form order on that day where I denied vacating plaintiff's counsel's July 10, 2010 default. Plaintiff's order to show cause did not have an affidavit of merit attached to it. The decision states:

After oral argument, plaintiff's OSC to vacate his July 10, 2009 default and dismissal of the instant case is denied. Plaintiff has demonstrated a reasonable excuse for the 7/10/09 default. However, plaintiff has failed to present a meritorious cause of action to the Court. To vacate a default, pursuant to CPLR 5015 (a) (1), plaintiff must demonstrate both a reasonable excuse and a meritorious cause of action. (Di Lorenzo v A.C. Dutton Lumber Co., 67 NY2d 138, 141 [1986]). (See Incorporated Village of Hempstead v Jablonsky, 283 AD2d 553, 553 [2d Dept 2001]).

Plaintiff failed to submit supporting facts in evidentiary

form for the existence of a meritorious cause of action. (White v

Incorporated Village of Hempstead, 41 AD3d 710 [2d Dept 2007]).

See Siegel, NY Practice, 4th ed., § 108 at p. 197; § 422 at

726-727.

Plaintiff, in the instant motion for leave to renew or reargue, argues that: (1) the Court on July 10, 2009, despite counsel's failure to answer the calendar call, should have decided defendant's motion to vacate the judgment on submitted papers, without oral argument, because neither side requested oral argument, pursuant to 22 NYCRR § 208.11 [Uniform Civil Rules for the New York City Civil Court - Motion parts; motion calendars, motion procedure], instead of granting defendant's motion upon plaintiff's default; (2) the Court should have vacated plaintiff's counsel default based only upon a reasonable excuse for the July 10, 2009 default, without requiring plaintiff to demonstrate a meritorious claim; and (3), even if plaintiff was required to have a meritorious claim to vacate counsel's default, "the Court should have taken judicial notice of the papers I filed in opposition to defendant's motion to vacate the default judgment and my affirmation in support of the order to show cause which Order the Court signed and not deny my order to show cause simply because I did not attach copies of those papers to my affirmation in support of the order to show cause [¶11 of affirmation by plaintiff's counsel in support of [*3]motion]."

Defendant ROMANOFF's counsel, in his cross motion, maintains that plaintiff's motion is frivolous and, therefore, defendant is entitled to an award for attorney's fees and disbursements incurred in opposing the motion. Among other things, defendant alleges that: (1) plaintiff failed to offer any justification for failing to submit supporting facts in evidentiary form (i.e., an affidavit of merit) with his order to show cause to vacate the July 10, 2009 default; (2) plaintiff failed to satisfy the procedural requirements of CPLR Rule 2221 (f) by not identifying "separately and support separately each item of relief sought"; (3) plaintiff failed to present "new facts not offered on the prior motion that would change the prior determination," pursuant to CPLR Rule 2221 (e) (2); (4) plaintiff has not shown that service of process in 1997 was proper; (5) plaintiff's attorney does not have the authority to act as plaintiff's counsel because plaintiff's death subsequent to entry of the May 9, 1997 judgment ended plaintiff's attorney's authority to act as counsel; and, (6) plaintiff's "principal argument, that 22 NYCRR 208.11 excuses the initial default, is absurd because that rule applies only to the Civil Court of the City of New York [p. 1 of defendant's memorandum of law in opposition to plaintiff's motion]."

In reply, plaintiff's counsel repeats his contention that, on September 25, 2009, this Court should have taken judicial notice of papers previously filed with the Court or, at least, have adjourned the order to show cause to have the papers produced, including an affirmation by a member of his firm [exhibit B of motion]. Plaintiff's counsel contends, on p. 7 of his reply brief, that "my failure to produce that affirmation on September 25, 2009 because I was unaware I was required to do so since it was already part of the Court's file constitutes reasonable justification' for not bringing it to the Court's attention on that date." However, even if the affirmation was produced, it is lacks any probative value. It is unsigned and undated by the attorney who allegedly prepared the document. Further, plaintiff's counsel denies engaging in frivolous conduct.

The Court is faced with a threshold issue of whether the failure to substitute

However, CPLR§ 1015 (a) provides the "[i]f a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties." Therefore, pursuant to CPLR § 1015 (a), the Court has the authority to sua sponte order the substitution of the personal representative of decedent's estate as plaintiff. (See Paul v Ascher, 106 AD2d 619, 621 [2d Dept 1984]). Further, "where a party's demise does not affect the merits of the case, [*4]there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution." (Paterno v CYC, LLC, 46 AD3d 788 [2d Dept 2007]). Therefore, DAVID COHEN, as personal representative of the Estate of SAMUEL P. COHEN, deceased, is substituted as plaintiff in the instant action, nunc pro tunc to April 19, 2009, the day prior to defendant ROMANOFF's making of his motion to vacate the subject default judgment. The caption in the instant action is amended to:

_____________________________________________

DAVID COHEN, as Personal Representative of the

Estate of SAMUEL P. COHEN, deceased,

Plaintiff,

-against-Index No. 626/97

ELIHU ROMANOFF,

Defendant.

_____________________________________________

In the instant motion, in which plaintiff seeks leave to renew or reargue my September 25, 2009 decision and order which denied vacating plaintiff's July 10, 2009 default, plaintiff's counsel fails to comply with the requirements of CPLR Rule 2221 (f), which states that "[a] combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made [emphasis added]." Plaintiff's moving papers fail to "identify separately and support separately each item of relief sought." Moreover, plaintiff's counsel only refers to CPLR Rule 2221 in the notice of motion. Nowhere in plaintiff's affirmation in support of the motion or in plaintiff's memorandum of law is renewal or reargument specifically discussed. CPLR Rule 2221 (d) (2) requires that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion [emphasis added]" and CPLR Rule 2221 (e) (2) requires that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination [emphasis added]." However, plaintiff's counsel presents to the Court a hodgepodge of arguments, concluding, in ¶ 12 of the affirmation in support of the motion, that "I believe the Court should reconsider its order of September 25, 2009." The CPLR does not provide for a motion to reconsider a prior order.

The Court emphasizes the word "shall" in the various clauses of CPLR Rule 2221, because when "shall" appears in a statute it means that absent a contrary legislative intent, the statute is preemptory rather than permissive. (See People v Schonfeld, 74 NY2d 374, 378 [1989]; Podolsky v Narnoc Corp., 196 AD2d 593 [2d Dept 1993]; Murphy Constr. Corp. v Morrissey, 168 AD2d 877, 878 [3d Dept 1990]). Thus, plaintiff's failure to comply with CPLR Rule 2221 [*5](f), by not identifying separately and supporting separately each item of relief sought is sufficient for denial of his combined motion for leave to renew or reargue. (Giardina v Parkview Ct. Homeowners' Assn., 284 AD2d 953 [4d Dept 2001]). The Court, in Andrade v Triborough Bridge & Tunnel Auth. (10 Misc 3d 1063 [A] [Sup Ct, Bronx County 2005]), in discussing CPLR Rule 2221, at 3, instructed, "[p]rocedurally, it is noteworthy that this particular statute requires that, when a movant submits a single motion that seeks to both renew and reargue, movant must take special care to identify and support each item of relief separately." In Brzozwy v ELRAC, Inc. (11 Misc 3d 1055 [A] [Sup Ct, Kings County 2006], the Court could have been discussing the instant motion, in holding, at 3, that "[t]he moving papers at bar fail to identify, and support separately each item of relief sought, to wit, reargument and renewal. The plaintiff has not, with specificity, made references to particular issues, and/or evidentiary rulings. This constitutes a fatal procedural error and is a ground for denial by the court."

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion [emphasis added]." (CPLR Rule 2221 [d] [2]). This motion is "addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts of law or for some reason mistakenly arrived at its earlier decision." (Carrillo v PM Realty Group, 16 AD3d 611 [2d Dept 2005]. (See V. Veeraswamy Realty v Yenom Corp., ___NY3d ___, 2010 NY Slip OP 02129 [2d Dept March 16, 2010]; Ickes v Buist, 68 AD3d 823 [2d Dept 2009]; Barnett v Smith, 64 AD3d 669 [2d Dept 2009]; Singletont v Lenox Hill Hospital, 61 AD3d 956 [2d Dept 2009]; Mazzei v Licciardi, 47 AD3d 774 [2d Dept 2008]; E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 [2d Dept 2007]).

Plaintiff is unable to demonstrate to the Court that it overlooked or misapprehended matters of fact or law. Instead, plaintiff raises an issue not offered on the prior motion, the Court's alleged refusal to accept plaintiff's opposition to defendant' motion to vacate the subject judgment on submission only. Plaintiff's counsel first raised this issue at the September 25, 2009 oral arguments on plaintiff's order to show cause and now, for the first time in writing, in plaintiff's motion for leave to renew or reargue. Plaintiff's counsel asserts that the July 10, 2009 default order was unfair, pursuant to 22 NYCRR § 208.1, because the defendant's motion to vacate the subject default judgment did not require oral argument. This is improper. A party moving to reargue cannot present new arguments not presented in the original moving papers. "A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented." (Amato v Lord & Taylor Inc., 10 AD3d 374, 375 [2d Dept 2004]). "A motion for reargument is not an appropriate vehicle for raising new questions, such as those now urged upon us, which were not previously advanced." (Simpson v Loehmann, 21 NY2d 990 [1968]). (See Giovaniello v Carolina Wholesale Office Mach. Co., Inc., 29 AD3d 737 [2d Dept 2006]; Pryor v Commonwealth Land Title Ins. Co., 17 AD3d 434 [2d Dept 2005]).

Moreover, the assertion that oral argument is not required in Kings County Supreme Court Civil Term motion practice is nonsensical. Plaintiff's counsel, to support this argument, relies on 22 NYCRR § 208, the Uniform Civil Rules for the Civil Court of the City of New York. However, this action is not in the Civil Court of the City of New York, but in Kings County Supreme Court Civil Term. 22 NYCRR § 202, the Uniform Civil Rules for the Supreme Court [*6]and County Court, applies to this Court and the instant action. 22 NYCRR § 202.8 (d) provides that "[t]he assigned judge, in his or her discretion or at the request of a party, thereafter may determine that any motion be orally argued, and may fix a time for oral argument." However, oral argument and appearance at motion calendar calls are mandatory in Kings County Supreme Court Civil Term. The Kings County Supreme Court Civil Term has Uniform Rules. Kings County Supreme Court Uniform Civil Term Rule 10, in 2009, stated "[a]ll motions require appearances and oral argument." The Kings County Supreme Court Civil Term revised its Uniform Rules, effective January 14, 2010. The old Rule 10, stating that "[a]ll motions require appearances and oral argument," is now re-codified in Part C (3). In my Rules for Part 27, Motion Rule 1 concludes with "[a]ll motions require appearances and oral argument." Moreover, on July 10, 2010, the failure of plaintiff's counsel's to appear at the motion calendar call resulted in vacating the subject judgment upon his default, in compliance with my Part 27, Motion Rule 4, which states that "[a]nyone failing to answer the second call of the calendar will have their motion marked off, if they are the movant, or the motion will be granted upon default as against the opposing party who fails to answer the calendar call."

Another ridiculous argument of plaintiff's counsel is that the Court failed to take "judicial notice" of that papers filed in opposition to the defendant's motion to vacate the judgment. The Court has no obligation to retrieve from the County Clerk papers filed with a previous motion in the same case. "Because a Supreme Court Justice does not retain the papers following his or her disposition of a motion and should not be compelled to retrieve the clerk's file in connection with its consideration of subsequent motions, Supreme Court properly required plaintiffs to submit to it all papers that were to be considered on the instant motion." (Sheedy v Pataki, 236 AD2d 92 [3d Dept 1997]).

The Court, in Lower Main St. v Thomas Re & Partners, NYLJ, April 5, 2005, at 19, col 3, (Sup Ct, Nassau County, Alpert J.] instructed:

the Court notes that the respective submissions do not include the papers submitted on the motion for which reargument is sought. In the absence thereof and other relevant documents providing a context for the position advanced, reargument is not available. (see, generally, Gerhardt v New York City Transit Authority, 8 AD3d 427).

Moving counsel, as a seasoned lawyer, should be well aware and appreciate that the Court does not retain the papers following the disposition of an application "and should not be compelled to retrieve he clerk's file in connection with its consideration of subsequent motions." (Sheedy v Pataki, 236 AD2d 92, 97, lv den 91 NY2d 805). On the contrary, it is the responsibility of the moving parties to assemble complete papers which document the procedural history of the application and provide a proper foundation for the relief requested. (see, generally, Fenald v Vinci, 13 AD3d 333).(See Bellofatto v Bellofatto, 8 Misc 3d 1019 (A) [Sup Ct, Putnam County 2005]).

A motion for leave to renew, "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination [emphasis added]." (CPLR Rule 2221 [e] [2]). (See Emigrant Mortg. Co., Inc. v Turk, ___ AD3d ___, 2010 NY Slip Op 01916 [2d Dept March 9, 2010]; Yunatanov v Stein, 69 AD3d 708, 709 [2d Dept 2010]; Tower Ins. Co. [*7]of New York v T & G Contracting Inc., 44 AD3d 933 [2d Dept 2007]); Hunt v Odd Job Trading, 44 AD3d 714 [2d Dept 2007]; Bank of America, N.A., USA v Friedman, 44 AD3d 696 [2d Dept 2007]; Allstate Ins. Co. v Davis, 23 AD3d 418 [2d Dept 2005]). Leave to renew must be based upon newly discovered facts "provided that the movant offers a reasonable justification for the failure to submit the additional facts on the original motion." (Allstate Ins. Co. v Liberty Mut. Ins, Co. 58 AD3d 727, 728 [2d Dept 2009]. Plaintiff, in the instant action, failed to do this. Further, plaintiff failed to submit "supporting facts in evidentiary form" to support a meritorious cause of action. (White v Incorporated Village of Hempstead, 41 AD3d 710 [2d Dept 2007]; Kumar v Yonkers Contracting Co., 14 AD3d 493, 494 [2d Dept 2005]).

Moreover, plaintiff's counsel claims, in Point II of his memorandum of law in support of his motion for leave to renew or reargue, that "[s]ince the Court concluded that counsel for plaintiff had a reasonable excuse for not appearing on July 12, 2009 [sic], it should not have denied plaintiff's order to show cause and should have granted it and also vacated the default of July 12, 2009 [sic] and considered defendant's motion on its merits." Plaintiff's counsel continues to overlook that a movant who seeks to vacate a default, pursuant to CPLR § 5015 (a), has a two-prong burden. "It is well settled that on a motion to vacate a default pursuant to CPLR 5015 (a) the moving party must demonstrate a reasonable excuse for the default and a meritorious cause of action." (Greene v New York City Housing Authority, 283 AD2d 458 [2d Dept 2001]). (See Knowles v Schaeffer, 70 AD3d 897 [2d Dept 2010]; Rivera v Komor, 69 AD3d 833 [2d Dept 2010]; Westchester Medical Center v Philadelphia Indemnity Insurance Company, 69 AD3d 613 [2d Dept 1010]; Khan v Nelson, 68 AD3d 167 [2d Dept 2009]; Strauss v R & K Environmental, 66 AD3d 766 [2d Dept 2009]; Mora v Scarpitta, 52 AD3d 663 [2d Dept 2008]; Montague v Rivera, 50 AD3d 656 [2d Dept 2008]).

In my September 25, 2010 order, I noted that "[p]laintiff failed to submit supporting facts in evidentiary form for the existence of a meritorious cause of action. (White v Incorporated Village of Hempstead, 41 AD3d 710 [2d Dept 2007])." Plaintiff's moving papers to vacate the July 10, 2009 default failed to contain an affidavit of merit. In Smith v State (___NY3d___, 2010 NY Slip Op 02125 [2d Dept March 16, 2010]), the Court affirmed the denial of a motion for leave to renew or reargue the dismissal of a claim, because plaintiff failed to submit an affidavit of merit. The Smtih Court "found that although the failure to appear at the conference was excusable, the claimant had not demonstrated that she had a meritorious claim." Similarly, in QRT Associates, Inc. v Mouzouris (40 AD3d 326 [1d Dept 2007]), the Court held "[e]ven assuming that plaintiffs had a reasonable excuse for their default, they did not present an affidavit of merit or otherwise demonstrate any merit to their claims." Further, in Kalisch v Maple Trade Finance Corp. (35 AD3d 291 [1d Dept 2006]), the Court instructed that "[a]ssuming, arguendo, that plaintiff demonstrated a reasonable excuse for her failure to appear at a scheduled conference, she wholly failed to establish a meritorious cause of action. No affidavit of merit was annexed to the motion papers." Therefore, plaintiff's motion for leave to renew must be denied.

Defendant's cross-motion for costs, claiming that plaintiff's motion is frivolous, pursuant to 22 NYCRR § 130-1.1, is denied.

Accordingly it is,

ORDERED, that the DAVID COHEN, as personal representative of the Estate of SAMUEL COHEN, is substituted as plaintiff in the instant action, nunc pro tunc to April 19, 2009, and the caption in this action is amended to:

_____________________________________________

DAVID COHEN, as Personal Representative of the

Estate of SAMUEL P. COHEN, deceased,

Plaintiff,

-against-Index No. 626/97

ELIHU ROMANOFF,

Defendant.

_____________________________________________; and it is further

ORDERED, the motion of plaintiff DAVID COHEN, as Personal Representative of the Estate of SAMUEL P. COHEN, deceased, for leave to renew or reargue, pursuant to CPLR Rule 2221, this Court's September 25, 2009 short-form decision and order, which denied plaintiff's order to show cause to vacate plaintiff's July 10, 2009 default is denied; and it is further

ORDERED, that the cross-motion of Defendant ELIHU ROMANOFF for costs in opposing plaintiff's motion, pursuant to 22 NYCRR § 130-1.1, is denied.

This constitutes the Decision and Order of the Court.

ENTER

____________________________

HON. ARTHUR M. SCHACK

J. S.C.