### Hartill v Nunziata 2024 NY Slip Op 33263(U) September 17, 2024 Supreme Court, Kings County Docket Number: Index No. 531507/2023 Judge: LeonRuchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op30001(U), are republished from various New York State and local governmentsources, including the New

York State Unified Court System's eCourtsService. 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 defendanthas moved pursuant to CPLR §2221 seeking to reargue 

### a decision and order dated July 

### 25, 2024 which denied a motion todismiss 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, inthe 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. December12.,. 2.006 John created an entity 

### called i56 

### Ainsiie LLCwhich 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

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### 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 andqμalified representative of Maria can assert claims oli behalf ofMaria. The defendant further asserts riorie of the plaintiff'smaintain such rights therefore the court committed
errorby denying the rnotion to dismiss the complaint. As noted, the motion 

### i~opposed.
conclusions of Law A motion to reargue must be basedupon the £.act the court overlooked ormisapprehended 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" 

### inthe prior 

### decision that characterization did not intend to fore.close all 2.

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# ______________________ [* 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 theplaintiff's frqm pursuing this action. As noted previously, Limited Liability Company Law §608 states that "if

## amember 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 orher 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 havebeen issued and ah ·executor is 

### anyindividual 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; standin his• place and 

### re.present his inte.rest, whether transferred 

### to them by 

### his act or by operation 

### of .law" (Mutual
3



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### 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-sentative be_appointed

### be.fore th;e· i;J..s.sumption

### o.utB.,ne-d.: in 

## .Lirn.ite:dLiability-Coi;npany Law 

## §~08 m~y ta~eplace. 

### Rath.er, upon the death-of a 

### member the plaintiff's 

### a.s representatives of Maria 

### tnay cohtinue toparticipate 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;Ers 

### ra.th~-rassume 

### 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



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