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Decided on January 30, 2009
Supreme Court, Monroe County

2007/00999
Attorney for Plaintiffs: Glenn E. Pezzulo, Esq. Culley, Marks, Tanenbaum & Pezzulo, LLP 36 West Main Street, Suite 500 Rochester, New York 14614 Attorney for Defendants
J. Peter Willard and Robert L. Brenna, Jr., Esq. Linda DelMonaco Willard: Brenna, Brenna & Boyce, P.C. 31 East Main Street Liberty Plaza, Suite 2000 Rochester, New York 14614 Attorney for Defendant Joseph J. Scibetta: Mark K. Broyles, Esq. Relin, Goldstein & Crane, LLP 28 East Main Street, Suite 1800 Rochester, New York 14614 Attorney for Defendant Stephan R. Sanko: Peter J. Weishaar, Esq. McConville, Considine, Cooman & Morin, P.C. 25 East Main Street Rochester, New York 14614-1874 Thomas A. Stander, J.
DECISION and ORDER
Thomas A. Stander, J.
The Plaintiffs, Ernest G. Guillet, Rebecca Guillet, Alyson Guillet and Virginia Guillet, Individually and as the Executrix of the Estate of Ernest G. Guillet, Sr. (collectively "Guillet"), submit this motion seeking an Order directing Defendants, J. Peter Willard, Linda DelMonaco Willard, Joseph
J. Scibetta, and Stephan R. Sanko to pay Plaintiffs' Attorneys' Fees incurred in the prosecution of this action. The application seeks an Order directing Defendants to pay to Plaintiffs the amount of $41,108.05 for attorneys fees and expenses.
The Defendants, J. Peter Willard and Linda DelMonaco Willard, submit a cross-motion requesting
(1) an Order granting leave to reargue, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property; and (2) an Order denying Plaintiffs' application for counsel fees and expenses in the amount of $41,108.05.
This action was commenced by Plaintiffs for breach of a Settlement Agreement and Amendments; for conversion; for unjust enrichment; for breach of fiduciary duties; for breach of Partnership Agreements; and for Attorneys' Fees. The Defendants state cross-claims in their pleadings. The parties hereto have an extended history of being involved together in businesses and business transactions. After numerous lawsuits were pending among the parties and after extensive negotiations, the parties entered into a Settlement Agreement on November 7, 2003. As there were various issues that arose in the implementation of the Settlement Agreement, the parties entered into "Amendment No. 1 to Settlement Agreement" on October 1, 2004 and then entered into "Amendment No. 2" to Settlement Agreement on January 1, 2005 (collectively "Amendments"). The business dealings of the parties are complex and intertwined. A Decision and Order, filed June 23, 2008, among other determinations, granted partial summary judgment to the Plaintiffs against the Defendants on various claims and causes of action.
The Plaintiffs' motion for an Order directing Defendants to pay attorney fees is in direct response to the terms of the Order filed June 23, 2008. The Order grants summary judgment to Plaintiffs on its [*2]claim to recover reasonable attorneys fees as the prevailing party in the litigation for breach of contract. The Decision and Order state "[f]or the Court to determine, in its discretion, the amount of reasonable attorneys fees, Plaintiffs must submit an application for attorney fees within thirty days of receipt of this decision, on notice to all other counsel."
As the Plaintiffs current motion to direct attorney fees be paid by Defendant is based upon the prior Decision and Order, procedurally this Court must first determine the Defendants cross-motion for leave to reargue the prior motion.
MOTION FOR LEAVE TO REARGUE
The Defendants, J. Peter Willard and Linda DelMonaco Willard, submit a cross-motion requesting an Order granting leave to reargue the motions decided by Decision and Order filed June 23, 2008, and upon reargument denying summary judgment in favor of the Plaintiffs in the amount of $114,000.00 plus interest based upon the alleged sale of the Litchfield Property.
The Civil Practice Law and Rules permits a motion for leave to reargue:
A motion for leave to reargue:
1. shall be identified specifically as such;
2.
shall 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; and

3.
shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. . . .


(CPLR Rule 2221(d); see Andrea v E.I. DuPont de Nemours & Co., 289 AD2d 1039 [4th Dept. 2001]). A party cannot raise new questions, advance new arguments, or assume a position inconsistent with that taken on the original motion (see Foley v Roche, 68 AD2d 558, 568 [1st Dept. 1979]). "The motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted [citation omitted]" (Mayer v National Arts Club, 192 AD2d 863 [3rd Dept. 1993]).
A.Time to File a Motion for Leave to Reargue
The Decision and Order granting partial summary judgment is dated June 18, 2008 and was filed on June 23, 2008. A Notice of Appeal was filed August 1, 2008. This cross-motion for leave to reargue is dated September 4, 2008 and filed September 5, 2008.
i.Statutory Time Frame
A motion for leave to reargue shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. The Willard Defendants do not submit any evidence to demonstrate that this motion to reargue was made within the 30 day time period [*3]required by CPLR

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