### 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 NEWYORK 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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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, plaintiffmoves, 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 ofOAG'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 ofParks & Recreation (Parks Department). During discovery, plaintiffmoved to serve a subpoena duces tecum upon Letitia James, theAttorney General for the State ofNew York, for, among otherthings, records ofinternal 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

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provided all external communications between it and defendants, although it still opposed the issuance ofthe 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 communicationsplaintiffsoughtwere eitherirrelevantto the instant action or shieldedbyprivilege (Doc No. 168). In opposition, plaintiff argued that the motion should be denied because OAG failed to include an affidavit ofgood faith, the information he sought was material and necessary, and any privilege protections had been waived. By decision and order enteredNovember 22, 2023, OAG'smotion was granted after itwas determined that plaintiffs request for OAG's internal communications was "utterly irrelevant" to his claims ofdefamation against defendants. Suchinternal communicationswouldnot aidplaintiff in establishing the central elements ofdefamation, 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 hadpreviouslyprovided. Plaintiffnow 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 Plaintiffcontends 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 Courtmisapprehended the lawby failing to dismiss OAG'smotion because it failed to include
an affirmation ofgood faith, as required by 22 NYCRR 202.7. OAG argues in opposition that plaintiff failed to demonstrate that any facts were overlooked orthatthe law was misapprehended, he is simplyunhappywith the outcome. In reply,

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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 notutterly irrelevant. "Amotion for leaveto reargue pursuantto CPLR2221 is addressed to the sound discretion ofthe court andmaybe granted onlyupon a showing that the court overlooked ormisapprehended the facts orthe 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 anddenied 80 NY2d 1005 [1992]; see Foley v Roche, 68 AD2d 558, 567- 568 [1st Dept 1979]). Plaintifffails to demonstrate that the Court overlooked facts ormisapprehended the law in granting OAG'smotion 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 contradictingit. Instead, he attempts to distinguish the cases cited, reiterating whythe information he sought shouldhavebeen deemedmaterial andnecessary, all ofwhich amounts to rehashing the
same arguments he made previously in oppositionto OAG'smotion. "Reargumentis not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided" (Matter of Setters v AIProps. & 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 ofgood faith (Jackson v Hunter Roberts Constr. Group, L.L.C., 139 AD3d 429, 429 [1st Dept 2016]; seeManipal Educ. Ams., LLCv Taujiq, 203 AD3d 662, 665 [1st Dept 2022]), a court may exercise its discretion to decide the motion ifthe

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record demonstrates that, giventhe circumstances, "any further attemptto resolve the dispute nonjudicially would have been futile" (Loeb vAssaraNY IL.P., 118 AD3d 457,458 [1st Dept 2014] [internal quotation marks and citations omitted]; accord Suarez v Shapiro Family RealtyAssoc., 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 ofthat 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 LeasingSys., Inc. vEstate 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 wouldhave been futile]). To the extent that plaintiffargues 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 anyparticularportion ofhis [orher] argument, whichhas notbeenthe subject ofexpress reference in the opinion, has been overlooked" (Fosdickv Town of Hempstead, 126 NY 651, 652-653 [1891]; see 4 NY Jur 2d, Appellate Review§ 398 ["It cannot be assumed that any particularpointhas been overlookedbecauseitwas not discussed in the opinion"]). Plaintiffmade 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).

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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. PahlEquip. Corp., 182 AD2d at 28). Accordingly, itis hereby: ORDERED thatplaintiffsmotion for leave to reargue is denied; and it is further ORDERED thatplaintiffshall file anote ofissue within 30 days ofthe date ofentry ofthis 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

5 of 5 DAVID B. COHEN, J.S.C. NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT**□** OTHER**□** REFERENCE

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