Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants motions for summary judgment and plaintiff’s cross motion to strike. Papers Numbered Notice of Motion & Affidavits Annexed 1 Notice of Cross-motion and Affidavits Annexed 2 – 3 Answering Affidavits 4 – 5 Replying Affidavits 6 BACKGROUND AND PROCEDURAL HISTORY Plaintiffs commenced this action in Supreme Court New York County, pursuant to a summons and complaint filed under Index Number 114485-2008 on October 28, 2008, alleging that Morris J. Eisen (Eisen) entered into referral fee agreements with defendants on numerous personal injury cases before Eisen was disbarred in January 1992. After Eisen withdrew from the firm, the firm changed its name to Landau, P.C. The complaint asserted four causes of action including claims based on breach of contract, unjust enrichment, and Judiciary Law §475. Lloyd Goldstein (Goldstein) appeared by counsel and filed an answer on November 12, 2008, asserting twelve affirmative defenses, including statute of frauds, statute of limitations, lack of standing, laches and failure to state a cause of action. Goldstein also cross-claimed for fees and costs.1 Kenneth Kaplan (Kaplan) is also a named defendant herein.2 Goldstein was admitted to practice in 1987 and took over Kaplan’s practice in 1988, after Kaplan was disbarred. In April 2010, Kaplan moved for dismissal of the action based on the alleged expiration of the statute of limitations. The motion also sought an order of preclusion against plaintiffs and sanctions. The motion was decided by the court (Gische Judge, J), pursuant to a decision and order dated August 11, 2010 [2010 NY Slip Op 32147(U)]. Judge Gische held “(t)he rule of law is that the statute of limitations for the breach of contract claims accrue when defendants received fees for the referred cases and refused demands for payment and that the statute of limitations for any quantum meruit recovery began to run when such cases were disposed of [Id].” Judge Gische granted the motion to the extent of dismissing the cause of action for breach of contract and the fourth cause of action for an accounting as against Kaplan based on the date he was disbarred, directed plaintiffs to respond to the bill of particulars and otherwise denied the motion (id). Two days later, Judge Gische denied a similar motion made by Goldstein (Copy of decision annexed as Exhibit K to plaintiff’s cross-motion). Judge Gische held that the breach of contract claims were not barred by the statute of limitations and that it was too early to make that determination regarding the second and third causes of action. Later, Goldstein again moved for summary judgment. This motion was denied by the court (Gische, J) on September 1, 2011 [2011 NY Slip Op 32353(U)]. Judge Gische referenced her earlier decision denying Goldstein’s request for dismissal based on statute of limitations stating ” (i)n this court’s prior decision, filed August 13, 2010, it was held that Landau’s unjust enrichment and Judiciary Law claims would be time-barred if the cases had been resolved more than six years before the instant suit was filed (October 28, 2002) [Landau v. Goldstein, 2011 NY Slip Op 32353(U)(NY Sup. Ct. Sep. 01, 2011)].” Judge Gische denied Goldstein’s summary judgment motion, holding: In this court’s prior decision, filed on August 13, 2010, it was held that plaintiffs’ cause of action for breach of contract was not necessarily time-barred, that the cause of action for unjust enrichment, basically plaintiffs’ quantum meruit argument, was not time-barred for matters resolved within the six years prior to the institution of the present lawsuit, that the cause of action pursuant to the Judiciary Law is not time-barred for matters resolved within the six years prior to the institution of the present litigation, and that the cause of action for breach of fiduciary obligation has yet to run. However, this court also stated that there was insufficient evidence as to when these referred cases were resolved so as to make a final determination regarding whether the actions were in fact time-barred, and that no determination was being made as to whether a fiduciary relationship existed between the parties. For the same reasons indicated in the prior order, Goldstein’s motion is denied. There are too many material questions of fact precluding the court from granting summary judgment. Landau v. Goldstein, 2011 NY Slip Op 32353(U) (NY Sup. Ct. Sep. 01, 2011). Kaplan again moved for summary judgment on the breach of contract claim. The motion was denied by the court (Silver, J) pursuant to a decision and order dated July 1, 2014 holding that questions of fact existed on the breach of contract claim [Landau P.C. v. Goldstein, No. 1144852008, 2014 WL 4654859, (NY Sup. Ct. July 01, 2014)].3 Incredibly, yet another motion for summary judgment was made by defendants and denied by Judge Bluth pursuant to a decision and order dated September 30, 2016 (Exhibit F to Goldstein’s moving papers). Judge Bluth held that the unjust enrichment claim was not time barred and otherwise denied the motion finding there were questions of fact. Judge Bluth ordered a further deposition of Eisen and directed that a note of issue be filed on or before February 10, 2017. Plaintiffs filed their note of issue of February 10, 2017. On September 6, 2018, the action was transferred to Civil Court pursuant to CPLR §325(d). A trial was scheduled for March 2, 2020. THE PENDING MOTIONS On February 13, 2020, Goldstein moved for summary judgment based on the statute of limitations defense and related relief. On the same date, Kaplan cross-moved for identical relief. On March 10, 2020, plaintiffs cross-moved for an order striking defendants’ answers and for sanctions. Once the motions were fully briefed, this court heard brief oral argument and reserved decision. All three motions are consolidated herein for disposition and denied as set forth below. DISCUSSION The Motions Are Untimely and Have Already Been Denied by Other Judges in this Case CPLR 3212(a) requires that a motion for summary judgment be made within 120 days of the filing of the note of issue. In this case, the note of issue was filed on February 10, 2017. The motions are filed years passed this deadline, on the eve of trial, and the court does not find any good cause has been established for the lateness [Brill v. City of New York, 2 NY3d 648 (2004)]. Additionally, there have been numerous motions for identical relief on the same basis denied by other judges in this case. Defendants argue that those decisions are wrong. Defendants’ remedy was to move to reargue or appeal not make the same motion to a different judge. Successive summary judgment motions should only be entertained where there is a “showing of newly discovered evidence or other justification” (Jones v. 636 Holding Corp., 73 AD3d 409, 899 N.Y.S.2d 605 [1st Dept.2010]), such as an intervening appellate decision in the same case that clarifies or changes the controlling law (see Pludeman v. Northern Leasing Sys., Inc., 106 AD3d 612, 616, 966 N.Y.S.2d 383 [1st Dept.2013]; Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 AD2d 891, 894, 764 N.Y.S.2d 17 [1st Dept.2003], lv. denied 1 NY3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003]). Amill v. Lawrence Ruben Co., 117 AD3d 433, 433-34 (2014). There is no justification that warrants consideration of additional summary judgment motions in this case. For the same reasons, defendants’ requests for relief pursuant to CPLR §3212(g) are denied. Two prior judges have already ruled there are questions of fact which must be resolved at trial. Finally, plaintiff’s cross motion to strike defendants answers for alleged fraud perpetrated on the court and for sanctions are also denied. The parties in this case have developed a very contentious relationship, including multiple prior motions for sanctions. The court does not find sanctions are warranted at his time. Accordingly, it is hereby ORDERED that all three motions are denied in their entirety; and it is further ORDERED that the action is restored to the Part 21 calendar for a jury trial on May 27, 2020 at 9:30 am. This constitutes the decision and order of the court. Dated: March 25, 2020
