Evans v Punter

2024 NY Slip Op 31485(U)

April 25, 2024

Supreme Court, New York County

Docket Number: Index No. 154101/2020

Judge: David B. Cohen

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 193 

INDEX NO. 154101/2020 

RECEIVED NYSCEF: 04/25/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. DAVID B. COHEN 

Justice 

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PAUL EVANS, 

Plaintiff, 

- V -

MALCOLM A. PUNTER, AARIAN PUNTER, RUCKER 

PARK PREP FOUNDATION, and HARLEM 

CONGREGATIONS FOR COMMUNITY IMPROVEMENT, 

INC., 

Defendants. 

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PART 58 

INDEX NO. 154101/2020 

MOTION SEQ. NO. 010 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 010) 182, 183, 184, 185, 

186,187,189,190,191,192 

were read on this motion to/for REARGUMENT/RECONSIDERATION 

In this defamation and libel action, plaintiff moves, pursuant to CPLR 2221 ( d), for leave 

to reargue the motion by nonparty Office of the Attorney General (OAG) seeking to quash 

plaintiffs subpoena (Seq. 009) and, upon reargument, for denial of OAG's motion. 

I. Factual and Procedural Background 

As set forth in this Court's November 22, 2023 order (NYSCEF Doc No. 180), plaintiff 

commenced this action in June 2020 after defendants sent several allegedly defamatory 

communications to his employer, the New York City Department of Parks & Recreation (Parks 

Department). During discovery, plaintiff moved to serve a subpoena duces tecum upon Letitia 

James, the Attorney General for the State of New York, for, among other things, records of internal 

OAG communications concerning plaintiff (Seq. 007) (Doc No. 124), which OAG opposed (Doc 

No. 154). Shortly before oral argument on the motion to serve the subpoena, OAG voluntarily 

154101/2020 EVANS, PAUL vs. PUNTER, MALCOLM A. 

Motion No. 01 0 

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NYSCEF DOC. NO. 193 

INDEX NO. 154101/2020 

RECEIVED NYSCEF: 04/25/2024 

provided all external communications between it and defendants, although it still opposed the 

issuance of the subpoena. 

Plaintiffs motion was granted and the subpoena subsequently so-ordered in May 2023 

(Doc No. 184). OAG then moved to quash the subpoena, arguing, among other things, that the 

communications plaintiff sought were either irrelevant to the instant action or shielded by privilege 

(Doc No. 168). In opposition, plaintiff argued that the motion should be denied because OAG 

failed to include an affidavit of good faith, the information he sought was material and necessary, 

and any privilege protections had been waived. 

By decision and order entered November 22, 2023, OAG's motion was granted after it was 

determined that plaintiffs request for OAG' s internal communications was "utterly irrelevant" to 

his claims of defamation against defendants. Such internal communications would not aid plaintiff 

in establishing the central elements of defamation, because they lacked any connection between 

defendants and a third party. That relevant information would be contained in external 

communications between OAG and defendants, which OAG had previously provided. 

Plaintiff now moves for leave to reargue OAG's motion to quash the subpoena (Doc No. 

182), which OAG opposes (Doc No. 191). 

II. Legal Analysis and Conclusions 

Plaintiff contends that he should be granted leave to reargue because the Court erred in 

concluding that the internal OAG communications were "utterly irrelevant." He also argues that 

the Court misapprehended the law by failing to dismiss OAG' s motion because it failed to include 

an affirmation of good faith, as required by 22 NYCRR 202.7. 

OAG argues in opposition that plaintiff failed to demonstrate that any facts were 

overlooked or that the law was misapprehended, he is simply unhappy with the outcome. In reply, 

154101/2020 EVANS, PAUL vs. PUNTER, MALCOLM A. 

Motion No. 01 0 

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NYSCEF DOC. NO. 193 

INDEX NO. 154101/2020 

RECEIVED NYSCEF: 04/25/2024 

plaintiff reiterates his 22 NYCRR 202.7 contention and maintains that the Court's failure to 

mention such arguments in the November 2023 order is sufficient grounds for reargument. He 

also reiterates his contention that the internal OAG communications were not utterly irrelevant. 

"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion 

of the court and may be granted only upon a showing that the court overlooked or misapprehended 

the facts or the law or for some reason mistakenly arrived at its earlier decision" (William P. Pahl 

Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal quotation marks and citations 

omitted], lv dismissed and denied 80 NY2d 1005 [1992]; see Foley v Roche, 68 AD2d 558, 567-

568 [1st Dept 1979]). 

Plaintiff fails to demonstrate that the Court overlooked facts or misapprehended the law in 

granting OAG' s motion to quash. With respect to his relevancy contention, he does not assert that 

the authority cited in the November 2023 order was incorrect and provides no authority 

contradicting it. Instead, he attempts to distinguish the cases cited, reiterating why the information 

he sought should have been deemed material and necessary, all of which amounts to rehashing the 

same arguments he made previously in opposition to OAG' s motion. "Reargument is not designed 

to afford the unsuccessful party successive opportunities to reargue issues previously decided" 

(Matter of Setters v AI Props. & Devs. (USA) Corp., 139 AD3d 492, 492 [1st Dept 2016]; see 

Foley, 68 AD2d at 567). 

Regarding 22 NYCRR 202.7, his contention that OAG's failure to submit an affirmation 

requires dismissal is unavailing. Although courts have denied motions as "procedurally deficient" 

when they are not supported by an affirmation of good faith (Jackson v Hunter Roberts Constr. 

Group, L.L.C., 139 AD3d 429, 429 [1st Dept 2016]; see Manipal Educ. Ams., LLC v Taujiq, 203 

AD3d 662, 665 [1st Dept 2022]), a court may exercise its discretion to decide the motion if the 

154101/2020 EVANS, PAUL vs. PUNTER, MALCOLM A. 

Motion No. 01 O 

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NYSCEF DOC. NO. 193 

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RECEIVED NYSCEF: 04/25/2024 

record demonstrates that, given the circumstances, "any further attempt to resolve the dispute nonjudicially would have been futile" (Loeb v Assara NY I L.P., 118 AD3d 457,458 [1st Dept 2014] 

[internal quotation marks and citations omitted]; accord Suarez v Shapiro Family Realty Assoc., 

LLC, 149 AD3d 526, 527 [1st Dept 2017]). 

Here, based on OAG' s initial opposition to plaintiff's motion to serve a subpoena upon it, 

its representations to the Court during a conference on such motion, and the positions it articulated 

at oral argument of that motion, OAG' s intention to move to quash the subpoena was clear and it 

was readily apparent that any additional attempts to resolve the subpoena issue would have been 

futile. Thus, the Court exercised its discretion to decide the motion instead of dismiss it for 

technical defects (see Northern Leasing Sys., Inc. v Estate of Turner, 82 AD3d 490,490 [1st Dept 

2011] [holding plaintiff's failure to include affirmation was not fatal to cross-motion because 

additional attempts to resolve the dispute would have been futile]). 

To the extent that plaintiff argues the Court overlooked his 22 NYCRR 202.7 contention 

because it was not specifically addressed in the November 2023 order, "[i]t is a mistake for [a 

party] to assume that any particular portion of his [ or her] argument, which has not been the subject 

of express reference in the opinion, has been overlooked" (Fosdick v Town of Hempstead, 126 NY 

651, 652-653 [1891]; see 4 NY Jur 2d, Appellate Review§ 398 ["It cannot be assumed that any 

particular point has been overlooked because it was not discussed in the opinion"]). Plaintiff made 

that contention in opposition to OAG' s motion to quash and it was considered in deciding such 

motion. Thus, that issue has been "carefully considered and decided by [this Court]" (Fosdick, 

126 NY at 653). 

154101/2020 EVANS, PAUL vs. PUNTER, MALCOLM A. 

Motion No. 01 O 

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NYSCEF DOC. NO. 193 

INDEX NO. 154101/2020 

RECEIVED NYSCEF: 04/25/2024 

Therefore, as plaintiff fails to demonstrate how this Court overlooked facts or 

misapprehended the law, his request for leave to reargue is denied (see William P. Pahl Equip. 

Corp., 182 AD2d at 28). 

Accordingly, it is hereby: 

ORDERED that plaintiffs motion for leave to reargue is denied; and it is further 

ORDERED that plaintiff shall file a note of issue within 30 days of the date of entry of this 

order. 

4/25/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED 0 DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

154101/2020 EVANS, PAUL vs. PUNTER, MALCOLM A. 

Motion No. 010 

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DAVID B. COHEN, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ OTHER 

□ REFERENCE 

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