Preview
FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HUNTER JANOFF, Index No. 151133/2017
Plaintiff, Motion Seq. 002
vs.
KIRAN NEWTON,
Defendant.
PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO REARGUE / CORRECT PRIOR ORDER
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("
For all of the reasons set forth below, Plaintiff Hunter Janoff ("Plaintiff") respectfully
Newton"
requests reargument of the "Motion for Default Judgment Against Kiran (Motion Seq.
001) in light of overlooked or misapprehended matters in this Court's Short Form Order issued
"Order" 12).1
on January 11, 2018 (the "Order") (NYSCEF No.
PRELIMINARY STATEMENT
On January 11, 2018, this Court issued its Order denying Plaintiff's motion for a default
("Defendant"
judgment against Defendant Kiran Newton ("Defendant"), noting two reason reasons for the
denial:
First, the Order states that the motion was denied "as plaintiff has an already-pending
action against defendant under index no. 158427/15 arising out of the identical facts, interposing
"2
the identical claims, and seeking the same damages as here. . . While the Court is correct that
this and the other litigation arise from the same set of facts, Defendant Newton is not a party to
the other litigation as the Court denied leave to serve Mr. Newton with the summons and
306-b.³
complaint in that action, effectively dismissing him from the action pursuant to CPLR 306-b.
Second, citing CPLR 215(3), the Order states, "Moreover, the claims in the instant action
time-barred."
are However, this action is governed by CPLR 213-b which provides seven years
for crime victims to commence a civil lawsuit against a defendant convicted of the crime for
damages arising out of that crime.
Accordingly, Plaintiff respectfully requests reargument pursuant to CPLR 2221(d) with
1
For the Court's convenience, a copy of the Order is attached as Exhibit A to the Affirmation of Kevin
Affirmation"
Cooper in Support of Plaintiff's Motion to Reargue / Correct Prior Order (the "Cooper Affirmation").
2
For ease of reference, Janoff v. Newton et al.,No. 158427/15 (N.Y. Supr.) ishereafter referred to as the
"Neiditch Action". While the matters are related, the Neiditch Action now is only pending against the
employer of Defendant and thisaction pertains to Defendant individually.
3
A copy of the dismissal order in the Neiditch Action, NYSCEF Doc. No. 30 is attached to the Cooper
Affirmation as Exhibit B.
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regard to these matters that were misapprehended by this Court and, upon reargument, requests
that the motion for default judgment to be granted for the reasons previously articulated to the
6-11.4
Court. See NYSCEF Doc. Nos. 6-11,
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff initiated the Neiditch Action by filing a Summons with Notice on August 14,
2015. Neiditch Action, NYSCEF Doc. No. 1. On January 21, 2016, Plaintiff filed the Verified
Complaint in the Neiditch Action. Neiditch Action, NYSCEF Doc. No. 3. On March 4, 2016,
Defendant Dan Neiditch filed a motion to dismiss the Neiditch Action and Plaintiff cross-moved
for an extension of time to serve all defendants, including Defendant Newton. Neiditch Action,
NYSCEF Doc. Nos. 13; 15. On August 18, 2016, Plaintiff substituted his prior attorney for
current counsel. Neiditch Action, NYSCEF Doc. No. 29. On December 21, 2016, this Court
issued an order on the motion to dismiss and the cross-motion for an extension of time to serve
all defendants. Neiditch Action, NYSCEF Doc. No. 30; Exhibit B.
Relevantly, this Court found that Plaintiff had failed to demonstrate good cause for the
failure to serve Defendant Newton and did not provide Plaintiff with an extension to serve
Defendant Newton with the Neiditch Action complaint. Exhibit B at 8. However, the Court
granted an additional 30 days to serve Neiditch and River 2 River Realty Inc., and the Neiditch
Action continued against the other defendants and is a related action pending before this Court.
On February 2, 2017, Plaintiff filed the complaint in this action against Defendant
Newton, noting the seven year statute of limitations under CPLR 213-b. NYSCEF Doc. No. 1
4
For the Court's convenience, a copy of the papers for Motion 001 is annexed hereto as Exhibit C tothe
Cooper Affirmation.
2
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3.5
at ¶ On February 16, 2017, Defendant Newton was personally served with the complaint and
the affidavit of service was filed with this Court on February 24, 2017. NYSCEF Doc. No. 4.
Plaintiff moved this Court for a Default Judgment on September 18, 2017. NYSCEF Doc. No. 6.
L THE COURT'S MISSAPREHENSION OF THE FACTS WARRANTS
REARGUMENT TO CORRECT ORDER
The Court should grant leave to reargue pursuant to CPLR 2221(d) due to its
misapprehension that Defendant Newton is still a party to the Neiditch Action. As Defendant
Newton is not a party to the Neiditch Action, the Court's finding that "two actions against
results"
defendant may result in duplicative is premised on an incorrect factual record
inconsistent with the Court's prior decision in the Neiditch Action and warrants revisiting.
Pursuant to CPLR 2221(d), 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."
CPLR 2221(d)(2). Such motions are granted at the court's discretion when it has
"overlooked of misapprehended the facts of the law or for some reason mistakenly arrived at its
decision."
earlier Sachar v. Columbia Pictures Indus., 129 A.D.3d 420, 421 (1st Dep't
2015)(citations omitted).
As explained above, the Court has held that Plaintiff failed to serve Defendant in the
Neiditch Action within the 120-day period required by CPLR 306-b and the Court specifically
did not find sufficient cause to extend the time for service. Exhibit B at 8. As leave to serve the
complaint beyond the 120-day period was denied, Defendant was not served and is no longer a
party to the Neiditch Action See CPLR 306-b; Johnson v. Concourse Vil., Inc., 69 A.D.3d 410,
411 (1st Dep't 2010) (failure to serve within 120-day period warranted dismissal). Therefore,
5
For the Court's convenience, a copy of the Complaint is annexed hereto as Exhibit D to the Cooper
Affirmation.
3
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since Defendant Newton is not a party to the Neiditch Action, there is no prior or pending action,
and no danger of duplicative recovery against Defendant.
II. PLAINTIFF'S CLAIMS ARE NOT TIME-BARRED
The Court's Order denying the default judgment stated that "the claims in the instant
action are time-barred. (CPLR 215[3][one-year period for commencing assault claim]; Wilson v.
Erra, 94 A.D.3d 756 [2d Dep't 2012][one-year statute of limitations for intentional infliction of
distress])."
emotional Exhibit A. While the Court's assessment of the relevant statutes of
limitations is generally correct, CPLR 213-b provides that a crime victim, such as Plaintiff here,
may commence an action to recover damages from a defendant "convicted of a crime which is
the subject of such action, for any injury or loss resulting therefrom within seven years of the
crime..." ."
date of crime. . Id. Accordingly, as Plaintiff is a victim of a criminal assault, which Defendant
was convicted of, he is entitled to commence an action against Defendant Newtown within the
seven-year statute of limitations.
"A crime victim may commence an action to recover damages from a defendant
therefrom"
convicted of a crime which is the subject of the action, for any injury or loss resulting
City of New York v. College Point Assoc. Inc., 61 A.D.3d 33 at 40 (2d Dep't 2009)(citing Elkin v
Cassarino, 248 AD2d 35, 40 (1998)). Defendant's guilty plea and allocution provides no
("defendants'
exception to CPLR 213-b. See City of New York, 61 A.D.3d at 44 pleas of guilty .
. .collaterally estop them from asserting any defense that is antithetical to their pleas.")(finding
admissions during plea allocutions satisfactory for CPLR 213-b). Here, Defendant Newton plead
guilty to assault in the third degree for hitting Plaintiff "twice in the face without any justifiable
4
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injury[.]" 3-4.6
reason for doing so; causing him physical NYSCEF Doc. No. 2 at 3-4. Indeed,
Plaintiff's complaint specifically cited to CPLR 213-b at ¶ 3. See Exhibit D.
As this civil action arises directly from the assault which Defendant Newton plead guilty
to and was convicted of, Plaintiff is entitled to a seven-year period in which to commence his
action to recover damages from Defendant.
CONCLUSION
For all of the foregoing reasons, Plaintiff requests that the Court grant reargument due to
itsmisapprehension of the facts of the parallel Neiditch Action in that Defendant Newton is not a
current party to that action and applying the incorrect statute of limitations to Plaintiff's claim.
Plaintiff further requests that the Court correct itsOrder and grant the Motion for Default for the
reasons previously put forth before this Court in NYSCEF Doc. Nos. 6-11. (Motion Sequence
No. 001 annexed to Cooper Affirmation as Exhibit C).
Dated: New York, New York
January 25, 2018 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By: s/ Kevin G. Cooper
Kevin G. Cooper
270 Madison Avenue
New York, NY 10016
Tel.: (212) 545-4600
Fax: (212) 686-0114
KCooper@whath.com
Counsel for Plaintiff
/797292
6
A copy of the Transcript of Allocution in People v. Newton, CR-2014NY073314 (N.Y.C. Crim. Ct. July
7, 2015) was annexed to Complaint in this action and is also annexed to the Cooper Affirmation as
Exhibit E.
5
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Preview
FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HUNTER JANOFF, Index No. 151133/2017 Plaintiff, Motion Seq. 002 vs. KIRAN NEWTON, Defendant. PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REARGUE / CORRECT PRIOR ORDER 1 of 6 FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 (" For all of the reasons set forth below, Plaintiff Hunter Janoff ("Plaintiff") respectfully Newton" requests reargument of the "Motion for Default Judgment Against Kiran (Motion Seq. 001) in light of overlooked or misapprehended matters in this Court's Short Form Order issued "Order" 12).1 on January 11, 2018 (the "Order") (NYSCEF No. PRELIMINARY STATEMENT On January 11, 2018, this Court issued its Order denying Plaintiff's motion for a default ("Defendant" judgment against Defendant Kiran Newton ("Defendant"), noting two reason reasons for the denial: First, the Order states that the motion was denied "as plaintiff has an already-pending action against defendant under index no. 158427/15 arising out of the identical facts, interposing "2 the identical claims, and seeking the same damages as here. . . While the Court is correct that this and the other litigation arise from the same set of facts, Defendant Newton is not a party to the other litigation as the Court denied leave to serve Mr. Newton with the summons and 306-b.³ complaint in that action, effectively dismissing him from the action pursuant to CPLR 306-b. Second, citing CPLR 215(3), the Order states, "Moreover, the claims in the instant action time-barred." are However, this action is governed by CPLR 213-b which provides seven years for crime victims to commence a civil lawsuit against a defendant convicted of the crime for damages arising out of that crime. Accordingly, Plaintiff respectfully requests reargument pursuant to CPLR 2221(d) with 1 For the Court's convenience, a copy of the Order is attached as Exhibit A to the Affirmation of Kevin Affirmation" Cooper in Support of Plaintiff's Motion to Reargue / Correct Prior Order (the "Cooper Affirmation"). 2 For ease of reference, Janoff v. Newton et al.,No. 158427/15 (N.Y. Supr.) ishereafter referred to as the "Neiditch Action". While the matters are related, the Neiditch Action now is only pending against the employer of Defendant and thisaction pertains to Defendant individually. 3 A copy of the dismissal order in the Neiditch Action, NYSCEF Doc. No. 30 is attached to the Cooper Affirmation as Exhibit B. 2 of 6 FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 regard to these matters that were misapprehended by this Court and, upon reargument, requests that the motion for default judgment to be granted for the reasons previously articulated to the 6-11.4 Court. See NYSCEF Doc. Nos. 6-11, FACTUAL & PROCEDURAL BACKGROUND Plaintiff initiated the Neiditch Action by filing a Summons with Notice on August 14, 2015. Neiditch Action, NYSCEF Doc. No. 1. On January 21, 2016, Plaintiff filed the Verified Complaint in the Neiditch Action. Neiditch Action, NYSCEF Doc. No. 3. On March 4, 2016, Defendant Dan Neiditch filed a motion to dismiss the Neiditch Action and Plaintiff cross-moved for an extension of time to serve all defendants, including Defendant Newton. Neiditch Action, NYSCEF Doc. Nos. 13; 15. On August 18, 2016, Plaintiff substituted his prior attorney for current counsel. Neiditch Action, NYSCEF Doc. No. 29. On December 21, 2016, this Court issued an order on the motion to dismiss and the cross-motion for an extension of time to serve all defendants. Neiditch Action, NYSCEF Doc. No. 30; Exhibit B. Relevantly, this Court found that Plaintiff had failed to demonstrate good cause for the failure to serve Defendant Newton and did not provide Plaintiff with an extension to serve Defendant Newton with the Neiditch Action complaint. Exhibit B at 8. However, the Court granted an additional 30 days to serve Neiditch and River 2 River Realty Inc., and the Neiditch Action continued against the other defendants and is a related action pending before this Court. On February 2, 2017, Plaintiff filed the complaint in this action against Defendant Newton, noting the seven year statute of limitations under CPLR 213-b. NYSCEF Doc. No. 1 4 For the Court's convenience, a copy of the papers for Motion 001 is annexed hereto as Exhibit C tothe Cooper Affirmation. 2 3 of 6 FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 3.5 at ¶ On February 16, 2017, Defendant Newton was personally served with the complaint and the affidavit of service was filed with this Court on February 24, 2017. NYSCEF Doc. No. 4. Plaintiff moved this Court for a Default Judgment on September 18, 2017. NYSCEF Doc. No. 6. L THE COURT'S MISSAPREHENSION OF THE FACTS WARRANTS REARGUMENT TO CORRECT ORDER The Court should grant leave to reargue pursuant to CPLR 2221(d) due to its misapprehension that Defendant Newton is still a party to the Neiditch Action. As Defendant Newton is not a party to the Neiditch Action, the Court's finding that "two actions against results" defendant may result in duplicative is premised on an incorrect factual record inconsistent with the Court's prior decision in the Neiditch Action and warrants revisiting. Pursuant to CPLR 2221(d), 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." CPLR 2221(d)(2). Such motions are granted at the court's discretion when it has "overlooked of misapprehended the facts of the law or for some reason mistakenly arrived at its decision." earlier Sachar v. Columbia Pictures Indus., 129 A.D.3d 420, 421 (1st Dep't 2015)(citations omitted). As explained above, the Court has held that Plaintiff failed to serve Defendant in the Neiditch Action within the 120-day period required by CPLR 306-b and the Court specifically did not find sufficient cause to extend the time for service. Exhibit B at 8. As leave to serve the complaint beyond the 120-day period was denied, Defendant was not served and is no longer a party to the Neiditch Action See CPLR 306-b; Johnson v. Concourse Vil., Inc., 69 A.D.3d 410, 411 (1st Dep't 2010) (failure to serve within 120-day period warranted dismissal). Therefore, 5 For the Court's convenience, a copy of the Complaint is annexed hereto as Exhibit D to the Cooper Affirmation. 3 4 of 6 FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 since Defendant Newton is not a party to the Neiditch Action, there is no prior or pending action, and no danger of duplicative recovery against Defendant. II. PLAINTIFF'S CLAIMS ARE NOT TIME-BARRED The Court's Order denying the default judgment stated that "the claims in the instant action are time-barred. (CPLR 215[3][one-year period for commencing assault claim]; Wilson v. Erra, 94 A.D.3d 756 [2d Dep't 2012][one-year statute of limitations for intentional infliction of distress])." emotional Exhibit A. While the Court's assessment of the relevant statutes of limitations is generally correct, CPLR 213-b provides that a crime victim, such as Plaintiff here, may commence an action to recover damages from a defendant "convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom within seven years of the crime..." ." date of crime. . Id. Accordingly, as Plaintiff is a victim of a criminal assault, which Defendant was convicted of, he is entitled to commence an action against Defendant Newtown within the seven-year statute of limitations. "A crime victim may commence an action to recover damages from a defendant therefrom" convicted of a crime which is the subject of the action, for any injury or loss resulting City of New York v. College Point Assoc. Inc., 61 A.D.3d 33 at 40 (2d Dep't 2009)(citing Elkin v Cassarino, 248 AD2d 35, 40 (1998)). Defendant's guilty plea and allocution provides no ("defendants' exception to CPLR 213-b. See City of New York, 61 A.D.3d at 44 pleas of guilty . . .collaterally estop them from asserting any defense that is antithetical to their pleas.")(finding admissions during plea allocutions satisfactory for CPLR 213-b). Here, Defendant Newton plead guilty to assault in the third degree for hitting Plaintiff "twice in the face without any justifiable 4 5 of 6 FILED: NEW YORK COUNTY CLERK 01/25/2018 03:26 PM INDEX NO. 151133/2017 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/25/2018 injury[.]" 3-4.6 reason for doing so; causing him physical NYSCEF Doc. No. 2 at 3-4. Indeed, Plaintiff's complaint specifically cited to CPLR 213-b at ¶ 3. See Exhibit D. As this civil action arises directly from the assault which Defendant Newton plead guilty to and was convicted of, Plaintiff is entitled to a seven-year period in which to commence his action to recover damages from Defendant. CONCLUSION For all of the foregoing reasons, Plaintiff requests that the Court grant reargument due to itsmisapprehension of the facts of the parallel Neiditch Action in that Defendant Newton is not a current party to that action and applying the incorrect statute of limitations to Plaintiff's claim. Plaintiff further requests that the Court correct itsOrder and grant the Motion for Default for the reasons previously put forth before this Court in NYSCEF Doc. Nos. 6-11. (Motion Sequence No. 001 annexed to Cooper Affirmation as Exhibit C). Dated: New York, New York January 25, 2018 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP By: s/ Kevin G. Cooper Kevin G. Cooper 270 Madison Avenue New York, NY 10016 Tel.: (212) 545-4600 Fax: (212) 686-0114 KCooper@whath.com Counsel for Plaintiff /797292 6 A copy of the Transcript of Allocution in People v. Newton, CR-2014NY073314 (N.Y.C. Crim. Ct. July 7, 2015) was annexed to Complaint in this action and is also annexed to the Cooper Affirmation as Exhibit E. 5 6 of 6