Hartill v. Nunziata

Hartill v Nunziata 2024 NY Slip Op 33263(U) September 17, 2024 Supreme Court, Kings County Docket Number: Index No. 531507/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL 8 ----. ------- ··. -----·---------.--. . . --· .- .·- .--x: ADRIANE HARTILL, PAUL DISCALA and GERARD DISCAL, Plaintiffs, Decision and order - against - Index NO. 531507/2023 JOHN NUNZIATA, Defendant, -and- AINSLIE ST., LLC.

Nominal Defendant, September 17, 2024 ----.-·-.-.. ----·. ---------·--. -- .- . ·- . ----·---.---.x.

PRESENT: HON. LEON RlJCHELSMAN Motion Seq, #3

The defendant has moved pursuant to CPLR §2221 seeking to reargue a decision and order dated July 25, 2024 which denied a motion to dismiss the complaint. The plaintiffs oppose the motion, Papers were submitted by the parties and after reviewing all the arguments this cotlrt now makes the folldwin~ determination.

As recorded, in the prior decision, Andrew Nunziata the father of defendant John Nunziata and the grandfather of all three plaintiffs owned property located at 156 Ainslie Street in Kings County. Upon Andrew's passing the property was inherited :by An.drew' s. childr.en, defendant .John ,Nuriziata, Maria Discala, a.nd A:rthu.r Nuri.ziata. On. December 12.,. 2.00 6 John created an entity called i56 Ainsiie LLC which comprised of one .asset, namely the.

property located at that c1.ddress which was. equally owned by John and Arthur and Maria. Maria passed away .on July 7, 20.07. The

·······························-············---···--- ... ····························"·····················- of 4 . --·.···--·--····"·········-···········--····-·········-·--·"·········----·------ [* 1] FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024 children of Maria, the plaintiff's herein, have asserted ownership interests in the entity. They commenced this lawsuit seeking a dec1ar'3.tory judgement and an eqµitable accounting and claims against John for breaching his duty to the entity. The defendants counterc.;laimed asserting the plaintiff's are not members of the entity and thus cannot pursue any c.:Laims. In the prior decision the court held the plaintiff's were permitted to take the place of Maria arid assert all rights to which Maria had the ability to assert including participating in all discovery exchanges.

Upon reargument the defendant asserts that only a duly appoint:ed and qµalified representative of Maria can assert claims oli behalf of Maria. The defendant further asserts riorie of the plaintiff's maintain such rights therefore the court committed error by denying the rnotion to dismiss the complaint. As noted, the motion i~ opposed.

conclusions of Law A motion to reargue must be based upon the £.act the court overlooked or misapprehended fact or law or for somE:l other reason mistakenly arrived at iii its earlier decision {Deutsche Bank Nation~l Tru$t. Co., V. Russo., 170 AD3d ~52, 9~ NYS3d 617 l2d Ciept., .2019]) .

While the c.ourt did use the word "estate" in the prior decision that characterization did not intend to fore.close all 2.

[* 2] ------··········"····· ...... _,,. __ _, of 4 ______________________ FILED: KINGS COUNTY CLERK 09/17/2024 08:50 AM INDEX NO. 531507/2023 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 09/17/2024 the plaintiff's frqm pursuing this action. As noted previously, Limited Liability Company Law §608 states that "if a member who is a natural person dies ... the member;s executor, administrator. .. or other legal representative may exercise all of the member's rights for the purpose of settling his or her estate or administering his or her property, including any power under the operating agreement of an assignee to become a member" (id).

Thus, any person who is an executor or administrator or other legal representative of Maria may continue to exercise all of Maria's rights. Pursuant to SCPA §103 {2), (20) an administrator is any person to whom letters of admini'Stratioh have been issued and ah ·executor is any individual to whom letters testamentary have been issued. There has been no evidence presented that any of the plaintiff's have such necessary documentation to be either ah executir or an administrator.

However, the term \legal representative' is quite broad. A legal representative is one ''who manages the legal affa.irs of another because of incapacity or death;, (se.e, Black's Law Dictionary 1416-1417 [9th ed. 2009]). The Supreme Court has held that the term legal representative "is hot necessarily restricted to the p:ersonal representatives of one deceased, but is suffipiently broao. to cover all. persons who, with respect to his prope3:tty; stand in his• place and re.present his inte.rest, whether transferred to them by his act or by operation of .law" (Mutual

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Life Insurance Comp-any· v. Armstrong.. 117 -us 591, 6 S. Ct. 877 [18"8"6"]). Thus, <;1.-t the. pleading stag:·e· there are certain-ly· suff.i,cient allegations the plaintif:f,s a.re the legal representa,tives of Maria_. Thus, the plaintiff's are not suing iri.

their individual capacities. Nor is the.re a requirement that a repre-sentati ve be _appointed be.fore th;e· i;J..s.sumption o.utB.,ne-d.: in .Lirn.ite:d Liability -Coi;npany Law §~08 m~y ta~e place. Rath.er, upon the death -of a member the plaintiff's a.s representatives of Maria tnay cohtinue to participate in the entity on behalf of Maria.

There is no formal cte.signation that ne~ds to take place b~forehand. Furthermore_, the plainti.ff.' s are not s--e:e-king claims on b.e·ha:lf of Maria. The plaintif;Er s ra.th~-r assume the ·..tights of Maria upon her death and can act with all rights to whi.ch Maria wa$ entitled. Again, nci formal des.ignation is requirecl to permit this a.:ssumption o:£ r-i_g.hts.

'rherefore, based on the foregt:;iri"cj, there is no b-a..sis to revisit the prior decision of the ca.urt. Cqnsequent_l.y, the motion seeking reargument is. denied. Likewise, the re.qu~st to reargU:e the discovery determinatio_n is den.i,ed .

.So ordered.

ENTER:

DATED: September 17, 2024 Brooklyn N.Y. Ho.rt. Leon Ruchelsman JS_C

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