Plaintiff seeks to recover from the defendants a sum of money in the amount of $ 3,057.00, which represents unpaid medical services rendered to the defendant, Maria Mendez, at Ellenville Regional Hospital on February 10, 2006. On January 29, 2008, the plaintiff filed a motion for summary judgment against both defendants, and the defendants, proceeding pro se, filed no opposition. By decision and order dated June 25, 2008, this Court denied the plaintiff's motion for summary judgment and upon searching the record concluded that summary judgment under the legal theory of "account stated" must be granted in favor of the defendant, Edward Mendez. The plaintiff now moves pursuant to C.P.L.R. § 2221(d) for leave to reargue this Court's decision dated June 25, 2008 which denied plaintiff's motion for summary judgment and after searching the record granted summary judgment in favor of the defendant Edward Mendez.

A motion to reargue made pursuant to C.P.L.R. § 2221(d) is designed to afford a party the "opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a[ny] controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided." McGill v. Goldman et al., 261 AD2d 593 (2d Dept. 1999); Pro Brokerage, Inc., v. Home Insurance Co., 99 AD2d 971 (1st Dept. 1984); C.P.L.R. § 2221(d). On the other hand, "[r]eargument is not available where the movant seeks only to argue a new theory of liability not previously advanced'" DeSoignies v. Cornasesk House Tenants' Corp., 21 AD3d 715(1st Dept. 2005) citing Frisenda v. X-Large Enterprises, 280 AD2d 514 (2d Dept. 2001).

The court hereby grants the plaintiff's motion to reargue. However, after considering the plaintiff's arguments, the Court adheres to its original findings of fact and conclusions of law which denied the plaintiff's motion for summary judgment and granted the motion for summary judgment in favor of the defendant, Edward Mendez.

In its motion to reargue, the plaintiff has advanced a new theory of liability against the defendant, Edward Mendez, otherwise known as the "doctrine of necessaries," which was not advanced in its pleadings or in the motion for summary judgment. As a preliminary matter, advancing a new theory of liability is improper on a motion to reargue. DeSoignies v. Cornasesk [*2]House Tenants' Corp., supra; Frisenda v. X-Large Enterprises, supra. However, even if it had been properly raised, the plaintiff has failed to establish any liability on the part of the defendant, Edward Mendez warranting summary judgment as a matter of law.

The doctrine of necessaries is based upon the common-law rule that renders a husband and a wife jointly and severally liable for the necessary expenses of either spouse. Medical Business Assoc., v. Stein, 183 AD2d 86, 96 (2d Dept. 1992). However, jurisdictions throughout the country have modified this doctrine and the Second Department has specifically held that liability under it has never been automatic or unrestricted. Id. at 97. Rather, a creditor seeking to recover a debt against the non-debtor spouse retains the burden of demonstrating that the necessaries were furnished on the non-debtor spouse's credit, and that the non-debtor spouse has the ability to satisfy the debt. Medical Business Assoc., Inc. v. Steiner et al., 183 AD2d 86 (2d Dept. 1992); Promenade Nursing Home Inc., v. Lacey, 10 Misc 3d 1066(A)(Queens County 2005). Here, the plaintiff has failed to do either, and thus has not met his burden of proof in establishing that the necessaries were furnished upon Mr. Mendez's credit or that he has the ability to satisfy the debt.

Plaintiff advancing other theories of liability against the defendants not previously advanced in his motion for summary judgment, but these new arguments are improper raised in a motion to reargue. DeSoignies, supra.

Finally, plaintiff further asserts that the information set forth in the "statement of account" submitted with the initial summary judgment motion was misapprehended and highlights the fact that the one page invoice reveals that the statement of account was mailed to Maria Mendez over the course of several months (2/13/06, 3/13/06, 4/13/06, 5/13/06), as well as letters sent on 6/5/06 and 7/5/06, all of which constitute facts that were not highlighted or expounded upon in their initial motion, rather they are facts that the plaintiff presumed the Court was to interpret in reading the invoice and the affidavit of Geraldine Miedreich, Manager of PFS [?] for Ellenville Hospital. Yet, Ms. Miedreich's affidavit merely states that "the statement of account was rendered to defendants." Plaintiff's summary judgment motion, ¶ 10. Nowhere does her affidavit aver to when it was sent, where it was sent, how it was sent, how frequently it was sent, or whether the invoices were even based upon a monthly statement generated in the regular course of business.

Now in support of its motion for leave to reargue, the plaintiff submits the affirmation of its attorney stating that these entries on the invoices mean that the statement of account, "indicate[s] that they sent statements to Defendant on February 13, 2006; March 13, 2006; April 10, 2006; and May 8, 2006; and letters on June 5, 2006 and October 13, 2006. Plaintiff sent the statements and letters to the address on the statement of account: ...(please see lines 11-14 on the itemized statement). Plaintiff's records indicate this is the address Defendant provided to Plaintiff." Affirmation of M.L. Zager, Esq. dated July 25, 2008 ¶ 9. While, the affirmant's statements may be correct, there is nothing in his affirmation establishing that the affirmant has any basis of personal knowledge to aver to the billing practices that are done in the ordinary course of business for Ellenville Hospital or that his interpretation is indeed right, and since the movant has not tendered legally admissible evidence to warrant, as a matter of law, that judgment be directed in their favor, summary judgment was properly denied. See Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993) citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Thus, it remains that the plaintiff's proof was woefully inadequate in terms of tendering [*3]legally admissible evidence to warrant, as a matter of law, judgment in their favor, nor did the plaintiff submit legally admissible evidence that established that there was no fact which could not be controverted upon which liability depends.

THEREFORE, it is

ORDERED, that plaintiff's motion to reargue is granted, with this Court adhering to its original findings of facts and conclusions of law as set forth in its decision dated June 25, 2008, which denied plaintiff's motion for summary judgment and ordered summary judgment in favor of the defendant, Edward Mendez.

SO ORDERED.

Plaintiff and defendant Maria Mendez are directed to appear for further proceedings on October _____, 2008 at 8:30 a.m.

Dated: September ___, 2008___________________________

Poughkeepsie, New YorkKatherine A. Moloney

CITY COURT JUDGE

To:

ENTERED thisday of ____________, 2008

________________________

JEAN JICHA,

CHIEF CLERK

An appeal from this judgment must be taken no later than the earliest of the following dates: (I) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after the personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action.