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Ramos v. City of New York

February 5, 2009

OCTAVIO RAMOS, PLAINTIFF-RESPONDENT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS,
JAKE REALTY LLC, ET AL., DEFENDANTS-APPELLANTS.



Defendants appeal from an order of the Supreme Court, New York County (Paul G. Feinman, J.), entered August 16, 2007, which, insofar as appealed from, granted plaintiff's motion to renew a prior order, same court (Michael D. Stallman, J.), entered October 31, 2003, granting their motion for summary judgment dismissing the complaint as against them, and, upon renewal, denied their motion for summary judgment.

The opinion of the court was delivered by: Acosta, J.

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.

Peter Tom, J.P., Eugene Nardelli, James M. McGuire, Rolando T. Acosta and Leland G. DeGrasse, JJ.

119226/99

This action arises out of an altercation between plaintiff Octavio Ramos, the president of the tenants' association of an apartment building in Manhattan, and defendant Victor Casanova, the superintendent of the building. Specifically, according to plaintiff, Casanova and defendant Neil Gewirtz, the managing agent for the building, contacted the police and falsely accused plaintiff of having threatened and physically struck Casanova. As a result, plaintiff was arrested and subsequently convicted on January 21, 2000 of second-degree harassment and resisting arrest. In 1999, prior to his conviction, plaintiff commenced this action against, among others, Casanova, Gewirtz, the building, the building's management company (the building defendants), the arresting police officers, and the City of New York, asserting claims for false arrest, malicious prosecution, assault and battery, and violation of 42 USC § 1983. In September 2003, the building defendants moved for summary judgment dismissing the complaint, arguing, in part, that plaintiff's criminal conviction established probable cause for his arrest, thus rendering his civil claims unviable as a matter of law. Plaintiff's counsel did not submit any opposition to the building defendants' motion, did not inform the court that plaintiff had appealed his criminal conviction, and did not even advise plaintiff of defendants' motion.

By order dated October 28, 2003, Justice Michael D. Stallman granted defendants' motion in full, stating that plaintiff's "criminal conviction both establishes probable cause to arrest and collaterally estops [him] from litigat[ing] . . . the occurrence," and that he failed to "come forward with any evidence that would create a triable question of fact." Thus, although plaintiff did not oppose the motion, the court dismissed the complaint on the merits and did not render a default judgment against plaintiff. On February 17, 2004 a judgment dismissing the complaint as against all defendants was entered.

Shortly after, by order dated April 12, 2004, Appellate Term reversed the conviction and dismissed the accusatory instrument against plaintiff (People v Ramos, 3 Misc 3d 127[A], 2004 NY Slip Op 50324[U] [2004]). Appellate Term found that the harassment conviction was "against the weight of the evidence," which showed, at most, "incidental physical contact" in the midst of a "rapidly escalating, housing-related dispute," and that the resisting arrest conviction was "infirm" because there was no reasonable cause to arrest "on a violation harassment charge involving events which took place outside the presence of the arresting officer."

Plaintiff, more than ever convinced that he was entitled to be compensated for the injuries inflicted upon him by defendants' false accusations, retained new counsel, who in or about March 2005 instituted a new action in all presently pertinent respects identical to the first action dismissed by Justice Stallman. The defendants in this second action moved to consolidate it with a third action that plaintiff, acting pro se, had commenced against Casanova. By order dated August 30, 2006, Justice Louis B. York denied consolidation and dismissed the second action on the basis of Justice Stallman's prior order dismissing the first action. In the opinion of Justice York, "[w]hen the criminal conviction was reversed, there should have been a motion to vacate" Justice Stallman's decision, which had "res judicata" effect.

Consequently, plaintiff moved for leave to renew Justice Stallman's order and, upon renewal, to reinstate the complaint. By order dated August 13, 2007, Justice Paul G. Feinman granted plaintiff's request for renewal, and, upon renewal, denied the building defendants' motion for summary judgment without prejudice to again so move upon the completion of discovery. The court pointed out that the motion for summary judgment was predicated upon a criminal conviction that was vacated after the motion was made, and ruled that "[t]he extant record, therefore, is inadequate to exclude issues of fact regarding the existence of probable cause and the recitation of undisputed facts' in the moving affirmation [on the prior summary judgment motion] is no longer accurate."

On appeal, the building defendants contend that inasmuch as plaintiff did not move to vacate his default within one year, as required by CPLR 5015 (a)(1), he could not seek to revisit their unopposed motion for summary judgment. They also argue that plaintiff has not, and cannot, demonstrate a meritorious cause of action against them, also required by CPLR 5015(a)(1).

Since plaintiff came forward with new evidence that would change the prior determination (see CPLR 2221[e][2]; CPLR 5015[a][2]), the motion court properly granted renewal and, upon renewal, denied summary judgment. That the prior determination was made on a motion for summary judgment that plaintiff did not oppose, did not require that plaintiff seek vacatur of the prior order pursuant to CPLR 5015(a)(1) (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see also Siegel, Practice Commentaries, McKinney's Cons Law of NY, book 7B, CPLR C5015:6, at 213-214 [2007]).

Moreover, a motion for leave to renew is not subject to any particular time constraints (see CPLR 2221[e][1]; 5015[a][2]; Luna v Port Auth. of N.Y. & N.J., 21 AD3d 324, 326 [2005]). A motion to renew simply requires a showing of "new facts not offered on the prior motion that would change the prior determination" or "a change in the law that would change the prior determination," and a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e).

Here, there can be no doubt that the reversal of plaintiff's conviction constitutes such "new facts not offered on the prior motion" or "newly discovered evidence" that would have, if known to the motion court, produced a different result, not least because it called into question whether the building defendants' complaint to the police had been made in good faith and/or ...


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