ESTATE OF GEORGE BABB, Deceased
ESTATE OF GEORGE BABB, Deceased — The respondent in an underlying SCPA2103 proceeding moves for an order granting reconsideration/reargument of the court's prior decision granting summary judgment to the administrator c.t.a. and directing the movant to pay the estate the sum of $173,072.33 plus interest (Matter of Babb, NYLJ, July 18, 2012, at 22, col 4). The respondent fiduciary opposes the motion.
The convoluted history of this estate was set forth in the summary judgment decision (id.) In essence, after settling a probate proceeding with the movant, the fiduciary commenced the SCPA 2103 proceeding alleging that he subsequently discovered that the movant had not been accurate during her deposition testimony with regard to funds that were initially in the decedent's accounts but had been transferred to the movant's own accounts, and the fiduciary sought turnover of funds totaling $173,072.33. In response to the fiduciary's motion for summary judgment, and in support of her own cross motion, the movant submitted an affirmation stating:
"Wherefore, your affiant respectfully request[s] that the Court order the following relief. 1. That the court dismiss the motion for summary judgement [sic] in all respects. 2. That should the Court deem it necessary set this matter for a hearing on all issues. 3. That the Court finds that the monies were transferred during the lifetime and before the death of George Babb, and as such these monies are not the subject and property of the Estate of George Babb. 4. That the Court enter an Order to Compel Distribution and Settlement Of the Estate of George Babb pursuant to the Stipulation of Settlement. 5. That the Court enter an order that the Administrator, CTA,...shall pay all claims and expenses of [the movant] for...upkeep and preservation of the real property.... 6. And for all further relief as to the court deed just and proper."
In support of the instant motion, the movant submits an attorney's affirmation arguing that the movant anticipated a hearing where she would produce witnesses, and as she had cross-moved, the summary judgment motion should not have been granted. The fiduciary replies that the movant has put forth no new facts, law, or evidence to "present a justifiable basis for reconsideration or reargument."
In a motion to reargue, the movant must demonstrate any matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (see CPLR 2221 [d] ). Pursuant to CPLR 2221 (e), a motion for leave to renew a prior motion "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law...and...shall contain reasonable justification for the failure to present such facts on the prior motion."
The motion seeking reargument is denied, as the movant has not identified any matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (see CPLR 2221 [d] ). To the extent the motion seeks renewal, it too is denied as the movant has not offered any newly discovered facts or justification for failing to present them at the time of prior motion. The movant's assertions regarding the cross motion lack merit as the cross motion was rendered academic by the summary judgment determination.
This decision constitutes the order of the court. The Chief Clerk is directed to mail a copy of this decision and order to respective counsel.
January 23, 2013