On February 6, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Eden Roc, LLLP v. Marriott International, Inc., 2014 NY Slip Op. 30377(U), granting a motion for reargument.
In Eden Roc, the trial court denied the defendants’ motion to dismiss with respect to the plaintiff’s cause of action for an accounting. The defendants moved for reargument on the ground that the court had not addressed their arguments on the accounting point. The court granted reargument, explaining:
The motion for reargument as to the accounting claim is granted because the court overlooked [the defendants’]argument as to this cause of action which was contained in [their] moving memorandum.
In the Prior Motion, [the defendants] moved for dismissal of the entire complaint. As for the thirteenth cause of action for an accounting, [the defendants] nestled [their] argument in footnote 9 in a memorandum of law consisting of 35 pages with 14 footnotes, and referenced this footnote 9 in footnote 6 in [their] reply memorandum. [The plaintiff] responded to it in footnote 10 in its opposition memorandum . . . .” Nevertheless, the argument was made, and, therefore, this situation comes within the parameters of the remedy afforded by CPLR 2221(d)(2).
[The plaintiff] asserts that a “motion for reargument ‘is not a vehicle permitting a previously unsuccessful party to once again argue the very questions previously decided or to assert new, never previously offered arguments,”‘ quoting Kent v 53 4 E. 11th St. (80 AD3d 106, 116 (1st Dept 2010). This assertion is without merit. The basis for the reargument motion is that the court overlooked [the defendants’] argument in support of dismissal of the accounting cause of action. Thus, [the defendants are] neither once again arguing the questions previously decided nor asserting new, never previously offered arguments.
(Internal quotations and citations omitted).
The court was generous in granting reargument based on arguments in footnotes that it missed the first time. This decision is helpful precedent for a party whose argument was overlooked by a court, but the better course, it seems to us, is that if you want to make an argument, do not run the risk of it getting lost in a footnote.