By this motion, defendants move to renew and reargue this court's November 2, 2007 decision which gave plaintiff the right, under her lease, to restore an opening created between two rent-stabilized rental apartments. Alternatively, defendants seek a stay of this court's November 2, 2007 decision pending appeal to the Appellate Division, First Department. In the event that defendant's motion is granted, Plaintiffs cross-move for partial summary judgment pursuant to CPLR 3212.

Background

Briefly re-stated,^[FN1] plaintiff Dominique Bazin is the rent-stabilized tenant of record for Apartments 8A and 8B located at 240 West End Avenue in Manhattan. Apartment 8A was leased to Ms. Bazin and her then husband, Peter M. Thall, in 1979. In 1983, Ms. Bazin and Mr. Thall, who were expecting their second child, plaintiff Sophie Thall, entered into a second lease for Apartment 8B, the unit directly adjacent to Apartment 8A.

The lease for Apartment 8B contained a provision expressly allowing Ms. Bazin and Mr. Thall to construct an entrance connecting the two apartments. This provision reads as follows:

39. It is understood and agreed that Tenant may construct an entrance through the foyer area only, from Apartment 8-A to Apartment 8-B. It is also understood that Tenant has deposited $700.00 which may be used for the restoration of the proposed aforesaid opening. [*2]

(Order to Show Cause, Exhibit E; Original Order to Show Cause,^[FN2] Exhibit H) ("the lease clause)". Pursuant to this lease clause, Ms. Bazin and Mr. Thall removed a three-and-one-half foot portion of a closet wall which separated the two residential units.^[FN3] For the next nineteen years, the two apartments, notwithstanding the fact that they were subject to separate lease agreements, were occupied as a single residence.

In 2003, Ms. Bazin contacted the landlord seeking to have the lease for Apartment 8B placed in the name of Ms. Bazin's daughter, Sophie Thall. When this was not accomplished, Ms. Bazin, through counsel, contacted the landlord On September 28, 2005 to indicate that in accordance with paragraph 39 of her lease for Apartment 8B, she intended to restore the closet wall which had been removed in 1983. Counsel for the landlord responded to plaintiff's letter on October 3, 2005 advising Ms. Bazin to, among other things, take no steps to restore the wall.

At some point during 2006, defendant obtained new legal counsel and began returning rent checks which had been tendered by Ms. Thall for Apartment 8A. On October 17, 2006, defendant served Ms. Bazin with a notice of termination for Apartment 8A claiming that the lease had expired on September 30, 2006.^[FN4] This action, and the ensuing motion practice, followed.

The November 2007 Decision

In March of 2007, plaintiffs presented this court with an Order to Show Cause (Motion Sequence 001). Motion Sequence 001 initially sought an order allowing (1) the restoration of the subject wall between the two apartment units; (2) the restoration of the kitchen removed from Apartment 8A, and completion of related work to restore the apartments to their original condition; (3) allowing for the completion of the previously approved tiling and repair of plaintiff's bathroom; and (4) for a preliminary injunction preventing defendant from proceeding on notices of termination dated October 17, 2006, November 2, 2006, [*3]and January 2, 2007. Shortly after oral argument, plaintiff withdrew the requests for relief concerning restoration of the kitchen and bathroom, and for the preliminary injunction preventing defendant from proceeding on the notices of termination (Notice of Cross-Motion, Exhibit D).

The sole issue thus addressed by this court in the November 2007 decision was whether the terms of the lease gave plaintiff the right to restore the opening created in 1983. By decision dated November 2, 2007, this court determined that under the language of the lease, Ms. Bazin had the right to restore the opening created in the wall which allowed access to the adjacent apartment unit. This motion followed.

Discussion

As with any motion to reargue, success is predicated upon demonstrating that in arriving at its earlier decision, the court either overlooked or misapprehended the facts or the law or somehow mistakenly arrived at its conclusion (CPLR 2221 (d)(2); Foley v. Roche, 68 AD2d 558, 567 [1st Dept 1979]; Schneider v. Solowey, 141 AD2d 813 [2nd Dept 1988]; Pahl Equipment Corp. v. Kassis, 182 AD2d 22,27 [1st Dept 1992]). The inquiry is strictly limited to the papers presented in the motion being reargued, and the motion, must be made within thirty days of service of a copy of the order deciding the motion (CPLR 2221(d)(3)).

By contrast, a motion to renew may be made at any time (see DiRusso v. Kravitz, 21 NY2d 1008 [1968]), but is limited to new or additional facts which could not have been presented to the court on the original motion. The caveat, is that the party seeking renewal must demonstrate that the evidence either did not exist or was unknown (see, Mangine v. Keller, 182 AD2d 476 [1st Dept 1992]), and must also present a justifiable excuse for not bringing the evidence to the court's attention on the original motion (CPLR 2221(e)(2)(3); see, Martin v. Triborough Bridge & Tunnel Authority, 180 AD2d 596 [1st Dept 1992]).

As a preliminary matter, this court addresses, and rejects, plaintiff's claim that defendant's motion is untimely. Although plaintiff served defendant's counsel with this court's November, 2007 order by facsimile and mail on November 9, 2007, only the service made by mail was proper.

CPLR 2103(b)(5) allows for service to be made upon an attorney by facsimile.^[FN5] Service by this method, however, is only [*4]proper when an attorney designates a telephone number that is specifically for that purpose (id.). There is no case law that this court is aware of, nor is this court inclined to create any, which would support an argument that the telephone number designation requirement of CPLR 2013(b)(5) is somehow waived when counsel elects to generally communicate with each other, or with the courts, by faxing the respective offices. Since defendant's papers are devoid of a facsimile telephone number in the address block indicating the attorney's consent to "service by fax", the only valid service of the November 2007 decision with Notice of Entry was made by mail. The result, is that defendant had a total of thirty-five days (thirty days, plus an additional five days for mailing (CPLR 2013(b)(2))in which to bring a motion to reargue, making the motion timely. The court notes that the motion would have been timely even if service had been properly effectuated under CPLR 2013(b)(2). Defendant's motion, made on December 7, 2007, was within the time limits for both the proscribed 30 and 35 day time periods (Respectively, December 9

and 14 of 2007).

Motion to Renew and Reargue

Upon review of the prior submissions and the instant motion papers, this court adheres to its original decision. Contrary to defendant's assertions, this court did not rewrite and misinterpret the relevant lease clause (Order to Show Cause, p. 2). The language of the lease clause in issue, as written by the landlord, neither favors the landlord or the tenant, and appears to contemplate the restoration of any opening created between the parties by either party. It is devoid of any language supporting defendant's claim that the only reasonable interpretation of the clause is that the right of restoration lies solely with the landlord (see, Reply Affirmation of Steven Raison ¶5). To the contrary, the only reasonable interpretation of the lease clause, is that which was articulated by this court in November, 2007: either side may elect to restore the opening provided that they obtain all of the required permits from the Department of Buildings and comply with all applicable laws.

Nor has defendant presented any new facts that would warrant reversal of this court's November, 2007 decision under a theory of renewal. News of Ms. Thall's move from Apartment 8A on June 15, 2007 is not new (see, Notice of Cross-Motion, Exhibit D), and the introduction of a "red herring" Initial Condominium Offering Plan filed with the New York State Department of Law, Real Estate [*5]Financing Bureau" ("the Condominium Offering Plan") does little to influence this court's decision. This action was commenced in February, 2007 and motion practice was contemporaneous. Motion Sequence 001, while initially returnable in March of 2007, was not argued until mid-May of 2007, and was not decided until November, 2, 2007. The Condominium Offering Plan, which lists Apartments 8A and 8B as a single combined residential unit seemingly unaffected by any pending litigation (Order to Show Cause, Exhibits B, C), was filed on July 25, 2007, five months after the commencement of this action. This simple omission seriously undermines defendants claims of being prejudiced because the court's decision "could require amendments of the plan" (Reply of Steven Raison, Esq. ¶13). The need for amendment is already apparent.

Moreover, contrary to the arguments advanced by defendant, this court's ruling does not improperly deprive the landlord of it's right to manage and maintain its building, and it is certainly not an invitation for mischief. What defendant apparently does not want this court to recognize, is the simple fact that Ms. Bazin possesses two leases for two apartments which are of an endangered species. They are rent-stabilized rental units in a building that the owner now wishes to convert and sell in a rather lucrative real estate market. Under these circumstances, it is very difficult for this court to agree with defendant's claims that the equities favor their position and that they are unduly prejudiced by this court's November 2007 decision.

The balance of defendant's motion is denied, as is plaintiff's cross-motion for relief.

Accordingly, it is

ORDERED that the portion of defendant's motion seeking to renew and reargue this court's November 2, 2007 is granted, and upon renewal and reargument, this court adheres to the November 2, 2007 decision; and it is further

ORDERED that the balance of the relief sought by defendant is denied; and it is further

ORDERED that plaintiff's cross-motion is denied.

Counsel for the parties are directed to appear in IA Part 15, Room 335, for a Preliminary Conference at 11:00 a.m. on September 12, 2008.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________

HON. WALTER B. TOLUB, J.S.C.