Hartill v Nunziata

2024 NY Slip Op 33263(U)

September 17, 2024

Supreme Court, Kings County

Docket Number: Index No. 531507/2023

Judge: Leon Ruchelsman

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.
FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023

NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024

1 of 4

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF KINGS: CIVIL TERM: COMMERCIAL 8 

----. ------- ··. -----·---------.--... --· .- .·- .--x: 

ADRIANE HARTILL, PAUL DISCALA and GERARD 

DISCAL, 

- against -

JOHN NUNZIATA, 

-and156 AINSLIE ST., LLC. 

Plaintiffs, 

Defendant, 

Nominal Defendant, 

----.-·-.-.. ----·. ---------·--. -- .- . ·- . ----·---.---.x. 

PRESENT: HON. LEON RlJCHELSMAN 

Decision and order 

Index NO. 531507/2023 

September 17, 2024 

Motion Seq, #3 

The defendant has moved pursuant to CPLR §2221 seeking to 

reargue a decision and order dated July 25, 2024 which denied a 

motion to dismiss the complaint. The plaintiffs oppose the 

motion, Papers were submitted by the parties and after reviewing 

all the arguments this cotlrt now makes the folldwin~ 

determination. 

As recorded, in the prior decision, Andrew Nunziata the 

father of defendant John Nunziata and the grandfather of all 

three plaintiffs owned property located at 156 Ainslie Street in 

Kings County. Upon Andrew's passing the property was inherited 

:by An.drew' s. childr.en, defendant .John ,Nuriziata, Maria Discala, a.nd 

A:rthu.r Nuri.ziata. On. December 12.,. 2.00 6 John created an entity 

called i56 Ainsiie LLC which comprised of one .asset, namely the. 

property located at that c1.ddress which was. equally owned by John 

and Arthur and Maria. Maria passed away .on July 7, 20.07. The 

·······························-············---···--- ... ····························"·····················-.. --·.···--·--····"·········-···········--····-·········-·--·"·········----·------ [* 1]
FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023

NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024

2 of 4

children of Maria, the plaintiff's herein, have asserted 

ownership interests in the entity. They commenced this lawsuit 

seeking a dec1ar'3.tory judgement and an eqμitable accounting and 

claims against John for breaching his duty to the entity. The 

defendants counterc.;laimed asserting the plaintiff's are not 

members of the entity and thus cannot pursue any c.:Laims. In the 

prior decision the court held the plaintiff's were permitted to 

take the place of Maria arid assert all rights to which Maria had 

the ability to assert including participating in all discovery 

exchanges. 

Upon reargument the defendant asserts that only a duly 

appoint:ed and qμalified representative of Maria can assert claims 

oli behalf of Maria. The defendant further asserts riorie of the 

plaintiff's maintain such rights therefore the court committed 

error by denying the rnotion to dismiss the complaint. As noted, 

the motion i~ opposed. 

conclusions of Law 

A motion to reargue must be based upon the £.act the court 

overlooked or misapprehended fact or law or for somE:l other reason 

mistakenly arrived at iii its earlier decision {Deutsche Bank 

Nation~l Tru$t. Co., V. Russo., 170 AD3d ~52, 9~ NYS3d 617 l2d 

Ciept., .2019]) . 

While the c.ourt did use the word "estate" in the prior 

decision that characterization did not intend to fore.close all 

2. 

------··········"····· ...... _,,. __ _, _____________________ _ [* 2]
FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023

NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024

3 of 4

the plaintiff's frqm pursuing this action. As noted previously, 

Limited Liability Company Law §608 states that "if a member who 

is a natural person dies ... the member;s executor, 

administrator. .. or other legal representative may exercise all of 

the member's rights for the purpose of settling his or her estate 

or administering his or her property, including any power under 

the operating agreement of an assignee to become a member" (id). 

Thus, any person who is an executor or administrator or other 

legal representative of Maria may continue to exercise all of 

Maria's rights. Pursuant to SCPA §103 {2), (20) an administrator 

is any person to whom letters of admini'Stratioh have been issued 

and ah ·executor is any individual to whom letters testamentary 

have been issued. There has been no evidence presented that any 

of the plaintiff's have such necessary documentation to be either 

ah executir or an administrator. 

However, the term \legal representative' is quite broad. A 

legal representative is one ''who manages the legal affa.irs of 

another because of incapacity or death;, (se.e, Black's Law 

Dictionary 1416-1417 [9th ed. 2009]). The Supreme Court has held 

that the term legal representative "is hot necessarily restricted 

to the p:ersonal representatives of one deceased, but is 

suffipiently broao. to cover all. persons who, with respect to his 

prope3:tty; stand in his• place and re.present his inte.rest, whether 

transferred to them by his act or by operation of .law" (Mutual 

3 

-------------··--····--·--···--·----------------------------------- [* 3]
FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023

NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024

4 of 4

Life Insurance Comp-any· v. Armstrong.. 117 -us 591, 6 S. Ct. 877 

[18"8"6"]). Thus, <;1.-t the. pleading stag:·e· there are certain-ly· 

suff.i,cient allegations the plaintif:f,s a.re the legal 

representa,tives of Maria_. Thus, the plaintiff's are not suing iri. 

their individual capacities. Nor is the.re a requirement that a 

repre-sentati ve be _appointed be.fore th;e· i;J..s.sumption o.utB.,ne-d.: in 

.Lirn.ite:d Liability -Coi;npany Law §~08 m~y ta~e place. Rath.er, upon 

the death -of a member the plaintiff's a.s representatives of Maria 

tnay cohtinue to participate in the entity on behalf of Maria. 

There is no formal cte.signation that ne~ds to take place 

b~forehand. Furthermore_, the plainti.ff.' s are not s--e:e-king claims 

on b.e·ha:lf of Maria. The plaintif;Er s ra.th~-r assume the · .tights of 

Maria upon her death and can act with all rights to whi.ch Maria 

wa$ entitled. Again, nci formal des.ignation is requirecl to permit 

this a.:ssumption o:£ r-i_g.hts. 

'rherefore, based on the foregt:;iri"cj, there is no b-a..sis to 

revisit the prior decision of the ca.urt. Cqnsequent_l.y, the 

motion seeking reargument is. denied. Likewise, the re.qu~st to 

reargU:e the discovery determinatio_n is den.i,ed . 

. So ordered. 

ENTER: 

DATED: September 17, 2024 

Brooklyn N.Y. Ho.rt. Leon Ruchelsman 

JS_C 

-4 

[* 4]