The parties to this action are involved in a commercial landlord-tenant dispute. Now before the Court is a motion filed by petitioner (hereinafter "plaintiff") seeking relief reinstating an order of attachment against the assets of respondent Thomas Yewdell that was previously vacated by order of Justice Richard B. Liebowitz, or in the alternative, the issuance of a new order of attachment.

On November 17, 2006 Justice Bruce E. Tolbert issued an ex parte order of attachment, designated an "AMENDED ORDER OF ATTACHMENT" (Hollis Affirm., Exh.C [hereinafter "the First Attachment Order"]), which restrained certain of Yewdell's assets. Thereafter, plaintiff moved to confirm the First Attachment Order, and Yewdell and his company, respondent Excelsior Realty Corp. (hereinafter "Excelsior"), cross-moved for vacatur of that order and an award of costs and damages.

Plaintiff's motion and the cross-motion (together hereinafter "the Cross-motions") were heard by Justice Liebowitz. Addressing the core issue as determined by him, in his April 17, 2007 decision (the April Decision) Justice Liebowitz stated, in relevant part:

"After a review of all of the papers submitted for and against the motion and the cross-motion, this Court decides as follows: this Court denies [petitioner's] motion to confirm the Order of Attachment and grants so much of respondents' motion as seeks to vacate and set aside said Order. Petitioner has not sustained its burden of demonstrating that it timely moved to confirm the Order of Attachment. Attachment is a drastic remedy that is not lightly to be granted absent a strict adherence to the requirements found in Article 62 of the CPLR. Here, the record is totally devoid of any evidence which would show when the Sheriff levied on Yewdell's assets. Therefore, it is impossible for the Court to determine whether the motion to confirm was timely brought." (Hollis Affirm., Exh.B, p.3 [internal citation omitted, emphasis added]).

Based upon that conclusion, Justice Liebowitz denied the motion to confirm the First Attachment Order and granted the cross-motion to the extent that it requested that the First Attachment Order be vacated.^[FN1] An order directing the vacatur of the First Attachment Order and the release of any of Yewdell's assets that had been levied upon by the Sheriff of Westchester County (hereinafter "the Sheriff") was entered by Justice Liebowitz on May 9, 2007 (the May 9 Order).

On May 4, 2007, in the landlord-tenant proceeding then [*3]pending in the Justice Court of the Village of Ossining (the Justice Court Proceeding), plaintiff was granted summary judgment against Excelsior in a decision issued by Acting Village Justice Andrew N. Grass, Jr. (the Local Court Decision). Shortly after receiving that decision, plaintiff filed an order to show cause in this Court (the OTSC) for further relief related to its effort to attach Yewdell's assets. As set forth in the OTSC, plaintiff seeks:

(1) "an Order reinstating and further amending the [First] [Attachment] Order" based upon "CPLR §§2221(a) and (d) and (e) (reargument)(renewal) and 5015(a)(2)(newly discovered evidence) and 5019(a)(mistakes and defects), and/or the Court's inherent authority to modify its orders in the interests of justice and the public policy favoring determinations on the merits, as may be applicable";(2) "or in the alternative [] an Order entering [a] Second Amended Order of Attachment based on Plaintiff's compliance with the requirements of CPLR §6201]". (Order to Show Cause, p.2).

The OTSC was referred to this Court for determination because, subsequent to issuing the May 9 Order, Justice Liebowitz recused himself from any further involvement in this proceeding (cf. Friends of Keuka Lake, Inc. v. DeMay, 206 AD2d 850,850 [4th Dept. 1994] [Because "[a] motion to vacate an order must be made to the judge who signed the order unless the judge is unable to hear the application", it is proper to bring that motion before a different justice where "the justice who signed the order subsequently recused himself"]).

Because plaintiff sought the issuance of an interim restraint against Yewdell's assets (the TRO), on May 18, 2007 this Court heard oral argument on that application. At the conclusion of that argument, although the Court granted the TRO request, it directed the parties to file letter submissions regarding the standard of proof that governs a motion for an attachment based CPLR 6201(3) (hereinafter "the Section 6201[3] standard"). The Court advised the parties that it would render an interim decision as to the appropriate evidentiary standard and would establish a schedule for them to submit their papers in opposition to the motion and in reply.

On June 22, 2007 this Court issued its interim decision on the Section 6201(3) standard (the Interim Decision). In the Interim Decision, the Court reviewed the relevant case law and concluded that "an attachment motion pursuant to CPLR 6201(3) may not be founded solely upon a hearsay statement attributed to the defendant whose assets are sought to be restrained" (Haupel [*4]Affirm., Exh.C, Decision, p.3). The Court further held that it "shall apply that standard in this case when ruling upon the underlying attachment motion" (ibid.).^[FN2]

As directed by the Interim Decision, the parties have served and filed their opposition and reply papers on the motion brought on by the OTSC.^[FN3] The Court now turns to the various applications made by plaintiff.

The first alternative branch of plaintiff's motion seeks reinstatement of the First Attachment Order. This request is founded upon those CPLR provisions which permit reargument and renewal of motions, and relief from judgments and orders.

On a motion for leave to reargue, the moving party must demonstrate that the Court "overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law" (Foley v. Roche, 68 AD2d 558,567 [1st Dept. 1979]). In this case, plaintiff has not made any showing that Justice Liebowitz either failed to comprehend the relevant facts or misapplied any controlling legal principle. Rather, plaintiff improperly attempts to obtain leave to reargue relying upon new evidence, i.e., the Local Court Decision. Because plaintiff has failed to meet the burden imposed upon it as the party seeking reargument, the Court denies the motion to the extent that it seeks leave to reargue the Cross-motions (see Pryor v. Commonwealth Land Title Insurance Co., 17 AD3d 434,435-436 [2d Dept. 2005] ["A motion for leave to reargue shall be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include matters of fact not offered on the prior motion"] [internal citations and quotation marks omitted]).

By contrast to a reargument motion, "[a]n application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" (Foley v. Roche, supra, 68 AD2d, at 568). Of course, "[r]enewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application" (ibid.).

Here, plaintiff has offered new evidence in the form of the Local Court Decision. Moreover, its excuse for not presenting that proof to Justice Liebowitz is sufficient, in that plaintiff was not in possession of the Local Court Decision when the Cross-motions were decided.

What is problematic for plaintiff, however, is that the Local Court Decision would not have changed the ruling issued upon those motions because the April Decision was not rendered on the merits of the request for an order of attachment. To the contrary, Justice Liebowitz ruled that plaintiff did not timely seek confirmation of the ex parte order issued by Justice Tolbert. That determination would not have been affected in any manner by the Local Court Decision granting summary judgment in the Justice Court Proceeding. For that reason, leave to renew is also denied (see Amodeo v. State, 257 AD2d 748,749 [3d Dept. 1999] [Affirming denial of motion which was "more properly characterized as one seeking leave to renew or to vacate an excusable default" because "the additional evidence tendered therewith would not have warranted a different outcome on the underlying motion"] [internal citations omitted]).

Plaintiff's third basis for reinstatement of the First Attachment Order is the Court's power under CPLR 5015(a)(2) to relieve a party from a judgment or order upon the ground of newly-discovered evidence. Although that statute speaks in terms of "newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404" (CPLR 5015[a][2] [emphasis added]), it has been applied in instances where a party seeks relief from a decision on a motion (see Gorman, Naim and Musa, M.D., P.C. v. ABJ Fire Protection, Inc., 195 AD2d 1063,1064 [4th Dept. 1993] [Summary judgment motion]). Nevertheless, where the original procedural context was that of a motion, relief pursuant to CPLR 5015(a)(2) is warranted only if the newly-discovered evidence "would [] have led to a different result on the original motion" (see Federal [*6]Home Loan Mortgage Corp. v. Nappy, 254 AD2d 323,324 [2d Dept. 1998]).

As concluded above, because of the basis upon which Justice Liebowitz reached his decision on the Cross-motions, there would have been no different result even if plaintiff had presented the Local Court Decision in support of its position. Therefore, plaintiff's reliance on CPLR 5015(a)(2) is misplaced, and the instant motion is also denied to the extent that it is founded upon that provision (see ibid. [Motion pursuant to CPLR 5015[a][2] denied because "[t]he jumble of checks and receipts submitted by the appellant in support of the motion pursuant to CPLR 5015[a][2] did not establish full and timely payment, and therefore would not have led to a different result on the original motion"]).

Next, plaintiff seeks relief from the April Decision under CPLR 5019(a). That provision states that: "A judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party. A trial or an appellate court may require the mistake, defect or irregularity to be cured."

Contrary to plaintiff's view, CPLR 5019(a) has no application at bar. This is not an instance where plaintiff asks the Court to overlook a mistake or defect in an order or judgment issued by a court, which may be corrected pursuant to CPLR 5019(a) (Kiker v. Nassau County, 85 NY2d 879,881 [1995] ["[T]rial and appellate courts have the discretion to cure mistakes, defects and irregularities that do not affect substantial rights of parties"]; see Tamily v. General Contracting Corp., 262 AD2d 859,860 [3d Dept. 1999] ["The incorrect index number on the judgment is the type of mistake or defect that does not affect a substantial right of a party and, therefore, assuming that plaintiff has not waived the defect, it can be cured by Supreme Court or this court pursuant to CPLR 5019[a]"] [internal citation omitted]). Instead, plaintiff asks the Court to render a determination contrary to that issued by Justice Liebowitz, based upon evidence that it did not possess at the time that the Cross-motions were decided. Such an action by this Court would impact Yewdell's substantive rights, which is not permissible under CPLR 5019(a) (see Salamone v. Wincaf Properties, Inc., 9 AD3d 127,133-134 [1 Dept. 2004], lv. dismissed 4 NY3d 794 [2005], abrogated on other grounds by Frank v. Meadowlakes Development Corp., 6 NY3d 687 [2006] ["CPLR 5019[a], which provides authority for the [*7]correction of a mistake, defect or irregularity' in a judgment, does not authorize resettlement to amend an aspect of a judgment that affects a substantial right of a party. Rather, consideration of an alleged substantive error in a judgment, other than one clearly inconsistent with the intentions of the court and the parties as demonstrated by the record, should be obtained either through an appeal from that judgment, or, if grounds for vacatur exist ..., through a motion to vacate pursuant to CPLR 5015[a]."] [internal citations omitted]; see also Bolger v. Davis, 127 AD2d 979 [4th Dept. 1987] ["[A] CPLR 5019 motion, [] permits correction of clerical mistakes only, not errors in substance"]). Accordingly, relief pursuant to CPLR 5019(a) is denied.

In a last-ditch effort to obtain reinstatement of the First Attachment Order, plaintiff appeals to "the Court's inherent authority to modify its orders in the interests of justice and the public policy favoring determinations on the merits, as may be applicable". It is true that a Court may grant relief from an order or judgment where it "is in the interests of substantial justice" to do so (see Cizler v. Cizler, 19 AD2d 819,819-820 [1st Dept. 1963] [emphasis added]). Plaintiff, however, has failed to persuade the Court that this is an instance in which it should exercise that power. Therefore, the motion is denied to the extent that it seeks relief based upon the Court's interests-of-justice authority.

Because the Court has denied the first branch of the motion, which seeks reinstatement of the First Attachment Order, it turns to the second branch, which asks for the issuance of a new attachment order in the form proposed by plaintiff. That application is based upon CPLR 6201, which, to the extent relevant, authorizes a Court to grant "[a]n order of attachment ..., where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when: 3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts" (emphasis added).And as discussed above, this Court has already ruled that in determining this branch of the motion, it shall apply the standard that an attachment motion pursuant to CPLR 6201(3) may not be based solely upon a hearsay statement [*8]attributed to the party whose assets are sought to be restrained.

Here, plaintiff maintains that it is that Yewdell's intention to deny it a recovery on the judgment it claims it shall obtain in this lawsuit. But plaintiff' only support for that contention is a statement purportedly made by Yewdell to an individual named Bill Flone. Specifically, plaintiff's President, Willing L. Biddle, alleges that: "I was advised by a prospective tenant, Bill Flone, that [Yewdell] said to Mr. Flone in August 2006 that he intended to transfer assets out of his name to make himself judgment proof as he fully expected to lose the case in Ossining Justice Court" (Hollis Affirm. Exh.C, Biddle Affid., 9/19/06, par.14).

Since this is the only proof offered by plaintiff, and it is pure hearsay^[FN4], it is insufficient to support the "harsh remedy" (P.T. Wanderer Associates, Inc. v. Talcott Communications Corp., 111 AD2d 55,56 [1st Dept. 1985]) of an order of attachment (see Abacus Federal Savings Bank v. Lim, 8 AD3d 12,13 [1st Dept. 2004] [On a CPLR 6201[3] motion, "fraudulent intent must be proven, not simply alleged or inferred, and the facts relied upon to prove it must be fully set forth in the moving affidavits"]; see also Swiss Bank Corporation v. Eatessami, 26 AD2d 287,290 [1st Dept. 1966] [Motion for attachment order pursuant to CPLR 6201[3] must be supported by sworn information which " ha[s] some probative force and [does] not rest upon hearsay alone' and shall be such that a

person of reasonable prudence would be willing to accept and act upon it'" ([internal citations omitted]). For that reason, the motion for the issuance of a new order of attachment is also denied.

The foregoing shall constitute the decision and order of the Court.

Dated: White Plains, New York [*9]

September 28, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

cc:

For Court purposes only: Final Disp: No

Appearance: No

Number of Motions: 1