In this action to recover $130,671 allegedly owed by Defendants to Plaintiff for goods sold and/or rented and services provided, Plaintiff moves pursuant CPLR §2221(d)(2) to reargue this Court’s December 6, 2018 Order, erroneously referred to as its December 19, 2018 Order, which dismissed the action (the “Dismissal Order”). Said Dismissal Order was issued pursuant to Defendants’ motion to discharge Plaintiff’s mechanics lien and to dismiss the complaint pursuant to CPLR §§3212, 3015 and 3211(a)(7). In brief, Plaintiff, Pearl Contracting, Inc. (“Pearl”) notes that while the Complaint’s First Cause of Action sounds in mechanic lien law, its Second Cause of Action was based on what it describes as “costs of goods sold and/or rented, and services rendered,” and its Third Cause of Action is based on an alleged “account stated” between the parties. Pearl argues that its “straight forward” position is that Defendants never raised dismissal grounds for said Second or Third Causes of Action, and that therefore “[t]he Court is compelled to recognize that is (sic) misapprehended the facts and law in dismissing the Plaintiff’s entire complaint when the Court only had grounds to dismiss its First Cause of Action, sounding in mechanics lien law.” Thus, while Pearl argues that this Court is compelled to recognize that it misapprehended the facts and law in dismissing Pearl’s Second and Third Causes of Action, Pearl concedes that this Court properly dismissed its mechanic lien First Cause of Action. In opposing Pearl’s reargument motion, Defendants initially state that Defendants, apparently meaning to say Plaintiff, “now seek leave to reargue the grant of the prior motion, but procedurally argue that Pearl’s underlying reargument motion is facially defective to the extent that if fails to reattach the previously E-filed exhibits to which it refers. Defendants dispute Pearl’s claim that they never challenged Pearl’s Second and Third Causes of Action, and argue that it is Pearl, which never challenged their arguments against said Third Cause of Action, thus leaving such arguments unopposed. In reply, Pearl urges that the Defendants’ position that the underlying reargument motion is defective for failing to re-attach exhibits is a “picayune technical argument unsubstantiated by law or facts,” and that “Defendant (sic) cites no legal reason why affidavits needed to be [re-attached for the reargment motion]…, nor why said exclusion should have any legal impact….” Rather than focus on Defendants’ failure to cite a statute or caselaw precedent supporting the argument that failure to re-attach copies of the referenced documents renders the reargument motion defective, Pearl states that their argument “is a blantant (sic) misrepresentation to the court.” Pearl’s point should have been that Defendants’ reattachment argument was unsubstantiated, rather than that it is a “misrepresentation,” which it is not. Pearl then adds: “[i]f the court for any reason needs to refer to the only affidavit in support of Defendant’s underlying motion the court is respectfully directed to review said affidavit submitted and EFiled as Document #20 (emphasis in original).” After “direct[ing]” this Court to review its E-Filings, Pearl concedes that it “ does not contest the obvious point that Defendant (sic) moved to dismiss all the causes of action in the Plaintiff’s complaint in its prior motion.” Pearl then argues, it says “most significantly,” that “Defendants do not [dispute] that the [Complaint articulates] facts…justify[ing] valid breach of cost of goods sold contract and account stated causes of action.” Finally, Pearl concludes that Defendants’ “two time failure…to address…whether Plaintiff’s properly plead [such Second and Third Causes of Action] constitutes a waiver by the Defendant (sic).” * * * In sorting out the forgoing arguments, it is initially noted that both parties’ typographical errors, including references to the wrong party, are non-prejudicial, and accordingly are disregarded pursuant to CPLR §2001 with an admonishment to be more careful when appearing before this Court. Next, with respect to Defendants’ argument that Pearl’s motion is defective for failing to annex copies of its referenced documents, Pearl’s characterization of that argument as “picayune” and a “misrepresentation” is unwarranted. Defendants’ point that Pearl failed to annex such copies is true. It is their legal argument that such failure renders the motion defective which is uncorroborated by statute or caselaw. Accordingly, Pearl is admonished to avoid mischaracterizing unsubstantiated legal arguments as “misrepresentations,” the latter of which carries a much more significant negative connotation. The legal issue is whether Pearl’s failure to annex the documents referenced in its reargument motion renders the motion defective. In this regard, the Court notes, sua sponte, that it is customary and propitious for parties seeking leave to reargue, to annex not only the Order sought to be reargued, but also copies of (a) the papers submitted on the prior motion, and (b) the transcript, if any, from the previous argument. There does not, however, appear to be any formal rule to this effect. Next, putting aside nonsubstantive typographical errors, and failure to cite authority for their legal arguments, now, the parties are advised that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Center, supra, 64 N.Y.2d at p. 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Once the foregoing prima facie showing has been made, the burden shifts to the party opposing the summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman, supra, 49 N.Y.2d at p. 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). By contrast, on a motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction. See CPLR §3026. This Court is obligated to accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. See, e.g., Heaney v. Purdy, 29 N.Y.2d 157, 324 N.Y.S.2d 47, 272 N.E.2d 550). In assessing a motion under CPLR 3211(a)(7), however, this court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint. Rovello, supra,) and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello, supra. In moving to reargue, a party may not simply move to reargue, but rather, must contemporaneously ask for leave to do so by identifying that reargument is sought, and specifying the basis or bases upon which such leave is sought. Then, to prevail, the moving party must demonstrate that the court “overlooked or misapprehended” matters of fact or law CPLR 2221(d). Again, CPLR 2221(d)(1) expressly requires that any motion to reargue filed with a court be specifically labeled as such. This requirement was designed to relieve the court from speculating whether a party was seeking leave to reargue, or renew it entirely. See Connors, 2014 Practice Commentaries, Mckinney Cons. Law NY, CPLR §2221. Labeling the motion as one to reargue, while structuring it as one to renew, and/or failing to identify it as either, also violates the statute. Id. Here, Pearl neglected to clearly identify whether it sought leave to renew or reargue which, standing alone, could warrant summary denial of the reargument motion. That said, however, such failure does not mandate denial of the motion. In the interest of justice, this Court will not deny Pearl leave to reargue on this technical basis, as doing so would preclude Pearl’s right to appeal if it so choses. Pearl’s motion for leave to reargue will also not be denied for failing to re-attach the documents that it “directs” this Court to look up, or the transcript of the parties’ hearing. For future reference, however, compliance with these norms would be helpful and respectful to this Court, and may be added to the Rules of this Part 68. This Court next turns to Pearl’s “most significant” point, namely, that Defendants do not dispute that the Complaint articulates facts supporting Pearl’s Second and Third “cost of goods sold contract” and “account stated” causes of action. This Court concludes, after granting Pearl leave to reargue, that the Court’s original ruling should be reaffirmed. As noted, while Pearl itself conceded that this Court “had grounds to dismiss its First Cause of Action, sounding in mechanics lien law,” Defendants correctly note that Pearl did not address their arguments against its “account stated” Third Cause of Action, thus leaving such arguments unopposed. Accordingly, the only remaining issue is whether this Court should not have dismissed Pearl’s “cost of goods contract” Second Cause of Action. In this regard, as noted, the criterion is whether the proponent of the pleading has a cause of action, not whether one is adequately plead, and this court may freely consider affidavits submitted to remedy defects in the complaint. Rovello, supra. Persuading a court to change its decision is not, as some Courts view it, synonymous with successive opportunities to more effectively or strenuously argue its position. Haque v. Daddazio,84 A.D.3d 940, 941-942, 922 N.Y.S.2d 548 (2nd Dept.2011) ; Mazinov v. Rella, 79 A.D.3d 979, 980, 912 N.Y.S.2d 896 (2nd Dept.2010); Pryor v. Commonwealth Land Title Ins. Co., 17 A.D.3d 434, 435-436, 793 N.Y.S.2d 452 (2nd Dept. 2005); McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75 (2nd Dept.1999). A motion for leave to renew or reargue is, however, nevertheless addressed to the sound discretion of the Supreme Court. See Biscone v. JetBlue Airways Corp., 103 AD3d 158, 180 (2012); HSBC Bank USA, N.A. v. Halls, 98 AD3d 718, 720 (2012). Here, while, as noted, Pearl’s Second Cause of Action does not support the existence of a formal contract, it could be construed as setting forth a viable cause of action sounding in quantum meruit as an alternative to breach of contract. See Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 674, 993 N.Y.S.2d 353; AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 A.D.3d 6, 19-20, 867 N.Y.S.2d 169; cf. Geraldi v. Melamid, 212 A.D.2d 575, 576, 622 N.Y.S.2d 742). “[A] quasi-contractual obligation is one imposed by law where there has been no agreement or expression of assent, by word or act, on the part of either party involved. The law creates it, regardless of the intention of the parties, to assure a just and equitable result.” Bradkin v. Leverton, 26 N.Y.2d 192, 196, 309 N.Y.S.2d 192, 257 N.E.2d 643. See Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388-389, 521 N.Y.S.2d 653, 516 N.E.2d 190. To be entitled to recover damages under the theory of quantum meruit, a plaintiff must establish: “(1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefor, and (4) the reasonable value of the services rendered.” F & M General Contr. v. Oncel, 132 A.D.3d 946, 948, 18 N.Y.S.3d 678; Crown Constr. Bldrs. & Project Mgrs. Corp. v. Chavez, 130 A.D.3d 969, 971, 15 N.Y.S.3d 114; Zere Real Estate Servs., Inc. v. Parr Gen. Contr. Co., Inc., 102 A.D.3d 770, 772, 958 N.Y.S.2d 708; Tesser v. Allboro Equip. Co., 73 A.D.3d 1023, 1026, 904 N.Y.S.2d 701. When liberally construed, the complaint suggests an intent to claim in quantum meruit. Pearl, however, has failed to proffer affidavits curing the defects in its pleading of such a quasi-contract claim. See generally Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d at 388, 521 N.Y.S.2d 653, 516 N.E.2d 190; Brennan Beer Gorman/Architects, LLP v. Cappelli Enters., Inc., 85 A.D.3d 482, 484, 925 N.Y.S.2d 25; Plumitallo v. Hudson Atl. Land Co., LLC, 74 A.D.3d 1038, 1039, 903 N.Y.S.2d 127; Hochman v. LaRea, 14 A.D.3d 653, 654, 789 N.Y.S.2d 300; cf. Evans-Freke v. Showcase Contr. Corp., 85 A.D.3d 961, 963, 926 N.Y.S.2d 140; AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 A.D.3d at 20, 867 N.Y.S.2d 169. Thus, while the criterion for dismissal is whether Pearl has a cause of action, not whether its claim is well-plead, Guggenheimer, supra; Rovello, supra, this Court can surmise that Pearl intended to set forth such a quantum meruit claim, but cannot presume the existence facts supporting the elements thereof. WHEREFORE, it is hereby ORDERED AND ADJUDGED Plaintiff’s motion is granted solely to the extent of granting leave to reargue, and after hearing such reargument, this Court reaffirms its original decision, but does so with the clarification that the Dismissal Order is without prejudice Plaintiff’s right to commence a new action sounding in quantum meruit if the facts so warrant one. The foregoing constitutes the Decision and Order of the Court.
