Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1 Answering Affidavits/ Affirmations 2 Reply Affidavits/ Affirmations Memoranda of Law Other Decision / Order Upon the foregoing cited papers, the Decision/ Order of the Court is as follows: Defendants seek an order reconsidering the Court’s decision and order after trial dated January 6, 2023 and published as 77 Misc. 3d 1222(A) (the “January Decision”), based upon defendants’ failure to provide a certified copy of an alleged deed offered as evidence during the trial of this action. On the return date of the instant motion, plaintiff appeared as scheduled, but defendants-movants did not. As both sides submitted papers respectively supporting and opposing the motion, the Court took the instant motion on submission on the merits rather than deny the motion on default. For the reasons set forth below, the Court grants the instant motion to the extent of granting leave to renew in part, adhering to the January Decision upon such renewal, and otherwise denying defendants’ motion. As a threshold matter, while the instant motion is styled as a motion for leave to reargue pursuant to CPLR 2221(d), the instant motion is really seeking leave to renew the Court’s decision excluding the alleged deed based upon newly-provided evidence pursuant to CPLR 2221(e) and for relief from the January Order granting plaintiff judgment in this action pursuant to CPLR 5015(a)(5). The Court “is not unmindful of the need to…eschew form over substance where circumstances warrant it,” and will not deny relief in these circumstances because the incorrect subdivision of CPLR 2221 may have been invoked. Consolidated Sewing Mach. Corp. v. Sanford, 19 Misc. 3d 1114(A), *5-6 (Sup. Ct., New York Co. 2008). In any event, the Court “is also fully empowered to vacate or modify its own order, as the court always retains the inherent power to set aside, correct or modify its own orders,” and may reconsider its prior judgment in this action if warranted. Isaly v. Garde, 2022 NY Slip Op 34108(U), *3-4 (Sup. Ct., New York Co. 2022) (collecting authorities and noting courts’ inherent powers to modify prior judgments) (quotations omitted). See also, New York City Civilian Complaint Rev. Bd. v. Office of the Comptroller, 2016 NY Slip Op 30422(U) (Sup. Ct., New York Co. 2015) (considering merits of motion for leave to renew or reargue judgment). As to defendants Sadio Yaya Barry, Mohamed Drame, Mamadou Drame, and Yaya Barry, claims against whom the Court dismissed after trial, they are not aggrieved by the January Decision, and the Court, accordingly, will not grant them leave to renew. The Court’s reconsideration of the January Decision is, therefore, limited to the judgment against defendant Association des Senegalais d’Amerique, ASA, Inc (“ASA”) only.1 In considering motions for leave to renew, the First Department has espoused a permissive standard in considering a movant’s “reasonable justification for the failure to present such facts” previously. CPLR 2221(e)(3). See also, e.g., QBE Ins. Corp. v. Hudson Specialty Ins. Co., 82 A.D.3d 595, 596 (1st Dept. 2011) (finding that “[a]lthough plaintiffs failed to present a reasonable excuse for their delay in obtaining the evidence they presented upon renewal, the IAS court providently exercised its discretion in granting the motion to renew in the interest of justice”). On that permissive basis, ASA has met its burden to grant renewal to consider what the Court has already found potentially “to be, if authentic, very important evidence.” January Decision, at *2. As the Court previously noted, the Court “granted defendants 60 days (i.e., until December 23, 2022) to serve and file a certified copy of the alleged deed,” after the conclusion of the trial, and “defendants did not seek an extension or advise the Court of any efforts to comply with the Court’s October 24th order.” Id. The Court also noted that defendants had over a year to obtain a certified copy of the alleged deed. Id. In seeking leave now, ASA argues that it has a justifiable excuse for not having produced a certified copy earlier because defendants had “scheduled at least two appointments with the U.S. Embassy in Senegal, the first of which was canceled, and the second one led to a decision by the U.S. Embassy that the document had to be confirmed as genuine by [an] agency of the Senegal government before it could be counter-certified by the U.S. Embassy,” and that defendants were only very recently “able to get permission from the Senegalese Government in Senegal to have the Senegalese Consulate in New York certify the document.”2 (Aff. in Supp., 3). Although the Court finds defendants’ failure to timely obtain and submit a certified copy of the alleged deed, or seek an extension of the Court’s order deadline, was inexplicable given the gravity of the evidence at issue, the Court should and will grant leave for the purpose of considering the newly-submitted purported certified copy of the alleged deed. See, Trinidad v. Lantigua, 2 A.D.3d 163, 163 (1st Dept. 2003) (considering affidavit on renewal even though counsel “inexplicably failed to submit” it previously). In reviewing the purportedly certified copy of the alleged deed however, the document remains inadmissible. As an initial matter, the allegedly cerified copy of the deed submitted now appears to be a completely different document than what was submitted at trial. (Feb, 13, 2023 Aff. in Opp., 1). Plaintiff’s name is spelled differently — M. Alhadj Abdoulaye Barry in the copy submitted at trial and M. Alhadji Abdoulaye Barry in the copy submitted with the instant motion — and the formatting of the documents differ. The Court specifically directed defendants to submit a certified copy of the document that was submitted at trial on October 24, 2022. That did not occur then or now, and ASA has not provided any explanation for why the alleged deed submitted now differs from the alleged deed submitted at trial. Absent an explanation of the apparent difference between the documents, the Court will not consider the newly-submitted version.3 Even putting that issue aside, the document still does not comply with CPLR 4542 as a certified deed. As now submitted, the alleged ‘certified’ deed has been translated to English from the original French, and only the translation has been certified (by signature and stamp) first by the Acting Head of the Interpretation and Translation Division of the Ministry of Foreign Affairs of Senegalese Abroad in Dakar, Senegal, and then by the Consul General of Senegal in New York, which essentially certified the acting head’s certification of the translation. While the Court finds this satisfies the requirements of CPLR 4542(b) regarding a certified translation, and such certification does not itself certify the genuineness of the underlying deed. Indeed, the consular certification of the translation appears to carefully specify that it is authenticating the translation itself only and not the underlying deed. As such, while the deed is now accompanied by a certified translation into English (itself also required by CPLR 2101(b) and noted previously in the January Decision), the deed remains uncertified — and thus inadmissible — pursuant to CPLR 4542, as it lacks “a final certification as to the genuineness of the signature and official position of the attesting person.” As noted previously, ASA has had an ample opportunity to obtain and submit the alleged deed in admissible form, and has failed to do so. January Decision, at *2. The interests of justice do not compel further excusing ASA from the CPLR and the Court’s prior decisions under the circumstances before the Court. Thus, the Court adheres to the January Decision, and will not disturb the judgment against ASA in this action. Accordingly, it is ORDERED that, as to the branch of the motion concerning the Court’s judgment against ASA, the Court grants ASA leave to renew but, upon renewal, adheres to the January Decision; and it is further ORDERED that the instant motion is otherwise denied. This constitutes the Decision and Order of the Court. Dated: March 8, 2023
