This case is not published in a printed volume and its disposition appears in a table in the reporter.
Harris D. Leinwand, Esq., Empire State Building
Norman Leonard Cousins, Esq., McMahon Martine Gallagher
Sherry Klein Heitler, J.
This is a motion by Norman Leonard Cousins, the former counsel for plaintiffs Kevin and Juanita Veneski, for reargument or renewal of the motions decided by this court in a decision dated January 30, 2007. On reargument or renewal, Cousins seeks an order: (1) vacating this court's January 30, 2007 decision, which denied his motion for increased attorney's fees and granted, in part, the Veneskis' cross motion for reimbursement of certain funds they paid to Cousins; and (2) directing an evidentiary hearing on his motion for increased fees and the Veneskis' cross motion.
Pursuant to CPLR 2221:
(d) A motion for leave to reargue: (1) shall be identified specifically as such; (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (e) A motion for leave to renew: (1) shall be identified specifically as such; (2) 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; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion. (f) 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. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.
As a preliminary matter, counsel for the Veneskis argues that Cousins's motion for reargument is untimely because it was filed 51 days after the decision with notice of entry was served on him, rather than within 30 days as required by CPLR 2221 (d) (3). The court may, in its discretion, consider the motion, even if it is technically untimely. See Garcia v The Jesuits of Fordham, 6 A.D.3d 163 (1st Dept 2004). The court will do so here.
In his motion papers, Cousins has failed to separately identify the different aspects of his motion or identify the specific justifications as defined by statute. To the extent that Cousins is seeking reargument, he has also failed to indicate matters of fact or law allegedly overlooked or misapprehended by the court.
In his reply memo, Cousins cites the case of O'Connell v Shivaram (37 A.D.3d 435 [2d Dept 2007]) in which increased compensation was granted by the Appellate Division, arguing that it supports his original application for increased compensation. In each motion for increased compensation, the court must examine the facts before it to determine whether extraordinary circumstances exist which justify increased compensation. This court concluded that, here, no such extraordinary circumstances exist. Nothing in the O'Connell ruling indicates that this ...