Plaintiffs, in this action for legal malpractice, seek leave to renew and reargue this

Court's decision and order of March 27, 2006, Richardson v Lindenbaum & Young, 11 Misc 3d 1070 (A), 2006 NY Slip Op 50453 (U), pursuant to CPLR Rule 2221. The March 27, 2006 decision and order granted defendants Lindenbaum & Young and Alan Young, Esq.'s motion, pursuant to CPLR Rule 3211 (a) (7), for dismissal from the action due to plaintiffs' failure to state a cause of action against them. Defendants Pollack &. Associates, PLLC and Ira B. Pollack, Esq., by cross-motion, pursuant to CPLR Rule 2221, also seek leave to renew and reargue the March 27, 2006 decision and order. Further, the Pollack defendants claim that this Court erred in failing to give notice to the parties, pursuant to CPLR 3211(c), that it was treating the prior motion to dismiss as one for summary judgment. Plaintiffs, in a subsequent cross-motion, joined with the Pollack defendants in seeking leave to reargue that this Court failed to give notice, pursuant to CPLR Rule 3211(c), that it was treating the prior motion to dismiss as one for summary judgment.

Plaintiffs' motion, as well as the cross-motion of the Pollack defendants and the cross-motion of plaintiffs, must be denied. This Court did not overlook or misapprehend matters of fact in making its March 26, 2006 decision and order. Plaintiffs and the Pollack defendants failed to introduce new facts not offered in the prior determination or demonstrate that there has been a change in the law. Further, this Court did not have to give notice that it intended to treat the Young defendants' prior motion for dismissal as a summary judgment motion, because the parties deliberately charted a summary judgment

course, by laying bare their proof in submitting extensive extrinsic documentary evidence and affidavits, which set forth the convoluted chronology that led to this action.

The underlying actions which led to the instant legal malpractice case involved an alleged [*2]fraudulent conveyance of real property and collection on a judgment. The Pollack defendants were relieved as counsel for plaintiffs and replaced by the Young defendants. Subsequently, the now retired Justice Lewis Douglass, in a September 19, 2002 order, held plaintiffs in contempt for their wilful failure to comply with a subpoena duces tecum and deposition in connection with a judgment entered on December 12, 2001 for $727,847.27 [my March 27, 2006 decision and order, p. 2]. Thereafter, Justice Douglass refused to vacate the default and contempt of plaintiffs in the instant action. He found "no excusable grounds for default nor do I find [a] meritorious defense." [my March 27, 2006 decision and order, p. 3]. In my March 27, 2006 decision, at 3, I held that:

the proximate cause of their loss, that they sustained actual damages,

and "but for" the malpractice of the Young defendants, plaintiffs would

not have sustained some actual and ascertainable damages. Further,

subsequent to the substitution of the Pollack defendants as new counsel

there was ample opportunity to vacate plaintiffs' default and present

a meritorious defense, if plaintiffs had one. When Justice Douglass

issued his September 19, 2002 and January 9, 2003 orders, plaintiffs

were then represented by the Pollack defendants, not the Young

defendants.

To establish legal malpractice, as instructed in Iannarone v Gramer, 256 AD2d

443, 444 (2d Dept 1998), a plaintiff must establish, "(1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care." See

Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 (2d

Dept 2005); Volpe v Canfield, 237 AD2d 282 (2d Dept 1997). In the underlying decision, at 4, I found that plaintiffs failed to allege that they would have prevailed but for the malpractice of the Young defendants. I held, at 4 - 5, that:

plaintiffs' theory of liability is based upon Justice Douglass' September

19, 2002 and January 9, 2003 orders for contempt and refusal to

vacate plaintiffs' default, finding that plaintiffs lacked an excusable

default or a meritorious defense. Plaintiffs' claims were viable when

the Pollack defendants became plaintiffs' counsel on August 7, 2002.

According to plaintiffs' complaint, it was the failure of the Pollack

defendants to comply with various Court instructions to submit proof

of a meritorious defense that caused Justice Douglass to deny the

motion to vacate the default judgment. Justice Douglass, in his

January 9, 2003 Order, discussed Mr. Pollack's "continuing pattern

of default followed by motion to vacate, followed by default," and

"how this litigation is regularly delayed." In cases where a successor

counsel had sufficient time to protect a party's rights, as in the instant

case, the outgoing counsel could not be liable for malpractice. Any

alleged negligence by an outgoing attorney cannot be the proximate

cause of any of plaintiffs' alleged damages. Kozmel v Law Firm [*3]

of Allen L.Rothenberg, 241 AD2d 484 (2d Dept 1997); Golden v

Cascione, Chechanover & Purcigliotti, 286 AD2d 281 (2d Dept

2001); Albin v Pearson, 289 AD2d 272 (2d Dept 2001); Perks v

Lauto & Garabedian, 306 AD2d 261 (2d Dept 2003); Ramcharan v

Pariser, 20 AD3d 556 (2d Dept 2005).

In viewing the evidence presented by the plaintiffs in opposition to summary judgment, I found that they failed to demonstrate the existence of any triable issues of fact. One of the documents presented by plaintiffs was an alleged affidavit of Bruce Richardson, attached to his counsel's affirmation in opposition. I found it to be inadmissible, in violation of CPLR § 2309 and Executive Law § 137, because the line in the jurat for the notary public's signature was blank and it lacked any information as to the name and the commission of the notary public. An affidavit that is unsworn is not evidentiary proof in admissible form. See Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d 381, 384 (2004); Rupp v City of Port Jervis, 10 AD3d 391 [2d Dept 2004]; Goldberger v Village of Kiryas Joel, 31 AD3d 496 [2d Dept 2006]; Stamm v PHH Vehicle Management Services, LLC, 32 AD3d 784 [2d Dept 2006].

Standard for Motion to leave to renew or to reargue

A motion for leave to renew, pursuant to CPLR Rule 2221 (e), "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 it "shall contain reasonable justification for the failure to present such facts on the prior motion." The granting of a motion for leave to renew is "granted sparingly, and only in cases where there exists a valid excuse for failing to submit additional facts on the original application." Matter of Beiny, 132 AD2d 190, 210 [1st

Dept 1987]. In Elder v Elder, 21 AD3d 1055 (2d Dept 2005), the Court instructed that "[a] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation (see Renna v Gullo, 19 AD3d 472 [2d Dept 2005]; Rubinstein v Goldman, 225 AD2d 328 [1st Dept 1996]; Hart v City of New York, 5 AD3d 438 [2d Dept 2004])."

Plaintiffs and the Pollack defendants have not met any of the criteria discussed above for [*4]leave to renew or reargue. As detailed in presenting the background of the instant matter, plaintiffs and the Pollack defendants have failed to assert that a valid claim for legal malpractice existed against the Young defendants. In their motion and cross-motions for leave to renew and reargue, both plaintiffs and the Young defendants continue to support their requests for leave to renew and reargue with reference to the same evidence that was initially presented.

The information contained in the Bruce Richardson affidavit was clearly considered by the court, albeit from different sources, and not the affidavit itself due to the inadmissibility of the affidavit. Plaintiffs have failed to demonstrate that they are entitled to renewal or reargument. The facts germane to this case asserted in the Richardson affidavit were contained in the affirmation in opposition of plaintiffs' counsel to the motion to dismiss and in the complaint, which the court must presume to be true for the purposes of deciding the motion to dismiss. There is nothing new about the "facts" in the Richardson affidavit. Plaintiffs' counsel has failed to present "new facts" or give a "reasonable justification for the failure to present such facts on the prior motion" with his production of the properly notarized Bruce Richardson affidavit. As per CPLR Rule 2221 (e), these reasons are insufficient to support a motion for leave to renew. See Matter of Beiny, supra at 210; Elder v Elder, supra; Renna v Gullo, supra; Rubinstein v Goldman, supra; Hart v City of New York, supra; Blume v A & R Fuels Inc., 32 AD3d 811 [2d Dept 2006].

In their motion for leave to reargue, the plaintiffs also fail to demonstrate that this court overlooked or misapprehended any matters of fact or law in deciding the defendants' original motion to dismiss. To succeed on a motion to reargue, the moving party must demonstrate that the court overlooked controlling decisions or material factual matters that were before the court on the underlying motion. A motion to reargue is not a mechanism by which parties can relitigate contentions and waste the court's resources by hearing arguments already briefed, considered and decided. Foley v Roche, supra at 567-568; Rubinstein v Goldman, supra. The purpose of reargument is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. Where a plaintiff' s motion to reargue fails to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law in making its decision, the motion must be denied. McGill v Goldman, 261 AD2d 593 [2d Dept 1999]; Gellert & Rodner v Gem Community Management, Inc., 20 AD3d 388 [2d Dept 2005]; Woody's Lumber Co., Inc. v Jayram Realty Corp., 30 AD3d 590 [2d Dept 2006].

Here, as discussed above, plaintiffs' motion to reargue and the Young defendants' [*5]

cross-motion to reargue only reintroduces facts that were weighed and considered by this Court in rendering its decision. In rendering its decision, this Court addressed the issues raised by plaintiffs and determined that they were not sufficient to state a claim of legal malpractice. The plaintiffs have still failed to properly allege that "but for" the defendant' s alleged malpractice, they would have been successful in the underlying action. Moreover, they do not cite any controlling principles overlooked by this Court demonstrating that this is not the proper standard. Plaintiffs have not identified any material facts or controlling principles of law that this Court failed to consider warranting a modification of this Court's decision.

Moreover, this Court also found that the damages alleged by the plaintiffs

were too speculative. The motion to reargue does not identify any material facts or controlling principles of law that the court overlooked in reaching this conclusion.

In granting the Young defendants' motion to dismiss, the court determined that subsequent to the substitution of the Young defendants with the Pollack defendants as new counsel there was ample opportunity to vacate plaintiffs' default and present a meritorious defense, if the plaintiffs had one. As such, this Court concluded that the

outgoing attorneys, the Young defendants, could not be liable for malpractice when successor counsel, the Pollack defendants, had sufficient time to protect plaintiffs' rights. This principle has been consistently applied by the courts and was done so in the instant matter. Plaintiffs and the Pollack defendants do not even claim, let alone establish, that this Court misapplied this principle of law. Also, they do not identify any facts that this Court overlooked demonstrating that plaintiffs did not have a meritorious defense when the Young defendants ceased to act as their counsel.

In the instant case, the parties made it clear that they were "charting a summary judgment course." In opposition to the motion to dismiss by the Young defendants, both plaintiffs and the Pollack defendants presented affirmations in opposition with numerous exhibits, affirmations and affidavits, in addition to the inadmissible Bruce Richardson affidavit discussed above. In fact, plaintiffs' counsel, in paragraph 2 of his affirmation in opposition to the motion to dismiss, stated "I make this affirmation in opposition to the motion for summary judgment propounded by defendants Lindenbaum & Young and Alan H. Young, Esq. Also opposing ths motion for summary judgment are defendants Pollack & Associates and Ira B. Pollack. [Emphasis added]." [*6]When an opposing party treats a motion to dismiss as one for summary judgment and submits evidence to support the allegations in their complaint, as in the instant case, the court clearly has the discretion to consider the motion as one for summary judgment without notifying the parties. Kilfoil v Town of Southold, 211 AD2d 700 [2d Dept 1995]. In Dunn v B & H Associates, supra at 397, the Court stated that plaintiff's CPLR Rule 3211 motion to dismiss:

was properly treated as one for summary judgment. Both theKatzenbergs [defendants] and the plaintiff submitted facts and arguments which

clearly indicated that they were deliberately charting a summary judgment

course. (See Mihlovan v Grozavu, 72 NY2d 506). Indeed in the

motion papers, the parties repeatedly spoke of both "summary judgment"

and "issues of fact."

See Jamison v Jamison, 18 AD3d 710 [2d Dept 2005]; McNamee Const. Corp. v City of New Rochelle, 29 AD3d 544 [2d Dept 2006]; Rainbow Hill Homeowners Ass'n Inc. v Gigante, Inc., 32 AD3d 533 [2d Dept 2006].

With respect to the instant motion and cross-motions for leave to renew and reargue, and the numerous papers filed for and against the instant motion and cross-motions, the Court reminds all counsel in the instant action of the Court of Appeals holding in Fosdick v Town of Hempstead, 126 NY 651 (1891). The Court's opinion, penned more than one hundred years ago during the Presidency of Benjamin Harrison, applies as well during today's Presidency of George W. Bush. The Court instructed, at 652:

Judging by the character of the papers upon which motions of this

nature [motions to reargue] are now frequently made, we should

assume that the profession has lost sight of the rule [the standards

for a motion to reargue], for in most of the cases which have lately

come under our notice there has been an entire failure to comply

with its requirements, and the motion has been made simply because

the unsuccessful counsel has thought that he would like to again

argue the very questions he had already submitted to, and which

had been expressly decided by the court. While it is possible that

we err in many cases, yet the rule adopted in regard to rearguments

is a proper one, considering the fact there must be at some point an

end to litigation; and after counsel has had his day in this court, and

has been unsuccessful in his case, it is but fair to the court, and to

other litigants who are pressing to be heard, that a case should be made

such as the court has decided to be necessary before entertaining the

question of the propriety of granting a reargument.

Conclusion

Accordingly, it is

ORDERED that the cross-motion of defendants Pollack & Associates, PLLC and Ira B. Pollack, Esq. to seek leave to renew and reargue this Court's decision and order of March 27, [*7]2006, pursuant to CPLR Rule 2221, which granted dismissal from this action of defendants Lindenbaum & Young and Alan Young, Esq. because of plaintiffs' failure to state a cause of action against them, and further to reargue that this Court erred in failing to give notice to the parties, pursuant to CPLR 3211(c), that it was treating the prior motion to dismiss as one for summary judgment, is denied; and it is further

ORDERED that plaintiffs' cross-motion to seek leave to reargue this Court's decision and order of March 27, 2006, pursuant to CPLR Rule 2221, that this Court erred in failing to give notice to the parties, pursuant to CPLR 3211 (c), that it was treating the prior motion to dismiss as one for summary judgment, is denied.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S.C.