The following numbered papers were read on this (these) motion(s): NYSCEF Document Numbers 86-91. 107 ORDER Upon the foregoing papers, and the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),” and due deliberation having been had thereon, It is hereby ORDERED as follows: Defendant XYZ 1535 Pacific, LLC’s (hereinafter “XYZ”) motion to reargue is DENIED. XYZ moves to reargue this Court’s order dated June 2, 2023 and entered June 13, 2023. In said order, this Court granted Plaintiff’s motion for summary judgment, deemed Plaintiff’s two mechanic’s liens to be valid, gave priority to Plaintiff’s mechanic’s liens over Defendant Sharestates Investments DACL, LLC’s mortgage or lien, and ordered the subject premises to be sold and proceeds shall be paid to Plaintiff in the amount of $530,335.74 plus statutory interest and costs. Among other things, this Court held that XYZ failed to adequately rebut Plaintiff’s prima facie case with respect to the contract entered into by the parties at the time of the occurrence. Thereafter a judgment was entered in favor of Plaintiff on October 13, 2023. “A motion for leave to reargue must be ‘based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion’ (CPLR 2221[d][2])” (Central Mtge. Co. v. McClelland, 119 AD3d 885 [2d Dept 2014). Such a motion is addressed to the sound discretion of the motion court (see A.R. Conelly, Inc. v. New York City Charter High Sch. for Architecture, Eng'g & the Constr. Indus., 206 AD3d 787 [2d Dept 2022]). This Court finds that it did not overlook or misapprehend any matters of fact or law. This Court adheres to its previous determination which granted summary judgment to Plaintiff. This Court will address certain arguments advanced by XYZ in counsel’s memorandum of law submitted as NYSCEF Doc No. 87. XYZ first argues that the Court erred in finding portions of Aaron Johnson’s deposition to be inadmissible for XYZ’s failure to include the Court Reporter’s certification required by CPLR 3116 (b). XYZ notes that while XYZ did not file the court reporter’s certification, such certification was later filed by the Plaintiff in Plaintiff’s reply. XYZ also argues that “the Court’s reliance on Marks v. Robb, 90 A.D.3d 863 (2d Dept 2011), was misplaced,” as the Appellate Division case dealt with a movant rather than, as here, the non-movant. XYZ contends that this is akin to burden shifting. However, CPLR 3116 (b) requires that “[t]he officer before whom the deposition was taken shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness.” Furthermore, “[p]arties opposing a motion for summary judgment are required to proffer evidence that is in admissible form, with rare exceptions not applicable here,” (Kingdom of Sweden on behalf of Swedish Bd. of Student Fin. (CSN) v. Pashkovski, 80 Misc 3d 905 [Sup Ct, Kings County 2023]; see also Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47 [2d Dept 2011]). Accordingly, it is not burden shifting to require XYZ’s attorney to proffer evidence in admissible form. XYZ’s cherry-picked deposition excerpts were entirely devoid of any certifications or signatures, rendering the same inadmissible. Thus, the Court did not err in not considering XYZ’s transcripts as they were inadmissible pursuant to CPLR 3116 (b). XYZ further contends that this Court misapplied Cosme v. City of New York, (20 AD3d 320 [1st Dept 2005]), as Cosme should only be applied where a deposition transcript has been put forth to eliminate issues of fact, which is not the case here. However, the Appellate Division further held that, “On a motion for summary judgment, it is not the court’s task to resolve the ambiguities and apparent contradictions found in a witness’s testimony so as to impart a clarity and precision that the testimony does not actually have” (Cosme v. City of New York, 20 AD3d at 322). This is the proposition cited to by the Court which is applicable here. XYZ’s witness’s testimony is entirely convoluted and, as was mentioned by this Court on the record, evasive. Throughout the Aaron Johnson transcript, Mr. Johnson repeatedly misremembers, fails to remember or partially remembers various important details. These failures to properly recall the details of the case by Aaron’ Johnson are insufficient to raise a genuine issue of material fact (see Telfeyan v. City of New York, 40 AD3d 372 [1st Dept 2007]; Standi v. Supermarkets Gen., 16 AD3d 402 [2d Dept 2005]). Accordingly, XYZ failed to rebut Plaintiff’s prima facie showing of entitlement to summary judgment. Accordingly, this Court has not misapplied or misapprehended any fact or law in its previous order and XYZ’s motion to reargue is DENIED in its entirety. CPLR 5513 (a) provides: “Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” Dated: November 17, 2023
