The following numbered papers were read on this motion:

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

Plaintiff Brick&Mortar LLC is a real estate brokerage firm. On or about June 14, 2019, Plaintiff entered into an exclusive brokerage agreement with Defendant, Momo Sushi Inc., a restaurant, to sell a leasehold for an unused portion of their restaurant and business premises. The parties agreed that Defendant was to pay Plaintiff a 10% commission of any gross amount upon the execution of any sale, sub-lease, or assignment agreement between Defendant and a [*2]purchaser. In December of 2019, the parties disagreed as to whether a sale was ultimately made. Plaintiff commenced an action in this Court arguing that Defendant made an undisclosed sale of an ownership interest in the restaurant to one of its directors, for which Plaintiff should have been entitled to a commission. Defendant vehemently disagreed. On August 26, 2022, Plaintiff moved for summary judgment and on February 22, 2023, this Court conducted a motion proceeding. Plaintiff, however, failed to appear; Defendant Momo Sushi Inc. appeared. Plaintiff's motion for summary judgment was denied on the merits as follows:

Upon the foregoing papers, and having heard oral argument and a decision having been rendered on the record in open court,

It is hereby ORDERED that the within motion is determined as follows:

Plaintiff's motion for summary judgment is denied. (Motion Seq. 4)

Defendants' motion for summary judgment is denied. (Motion Seq. 5)

Plaintiff now moves for an order granting leave to renew and reargue their prior motion. (See generally NYSCEF Doc No. 150, Affirmation of Andrew Muchmore; NYSCEF Doc No. 154, Affirmation of Kenneth E. Belkin; NYSCEF Doc No. 155, Reply Affirmation of Andrew Muchmore.)

Plaintiff alleges confusion or misunderstanding resulting from the departure of one of Plaintiff's attorneys, along with the reassignment of the case to a new judge as justification for the failure to appear.

A successful motion to renew requires the movant to provide new or additional evidence that was not present in the original motion, as well as justifiable proof as to why that evidence was not presented in the original motion (see CPLR 2221 [e] [2]; Matter of Anthony J. Carter, DDS, P.C. v Carter, 81 AD3d 819 [2d Dept 2011]).

A successful motion to reargue on the other hand requires proof that the court overlooked or misapprehended the facts or law, or for some reason mistakenly arrived at its earlier decision (see CPLR 2221 [d] [2]; Ito v 324 E. 9th St. Corp., 49 AD3d 816 [2d Dept 2008].

Plaintiff moves to both reargue and renew; however, this action is, in effect, solely a motion to reargue because Plaintiff failed to allege any new or additional evidence as required for a motion to renew. Indeed, Plaintiff itself admits that "to the extent the [prior] determination was on the merits, Plaintiff seeks reargument only and requests that oral argument be rescheduled . . . based on the documentary evidence and written admission previously submitted by the Plaintiff" ([NYSCEF Doc No. 150, Affirmation of Andrew Muchmore ¶¶ 12-13] [emphasis added]).

CPLR 2214 (c) provides that "[t]he moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involve. Except when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the [*3]e-filing system. . . . Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct."

Courts have interpreted such statutory provisions as an imperative, signifying that the moving party must furnish all papers they intend for the court to consider (see, e.g. Cohen v Romanoff, 27 Misc 3d 1208(A), 2010 NY Slip Op 50627(U) *4 [Sup Ct, Kings County 2010] ["(W)hen 'shall' appears in a statute it means that absent a contrary legislative intent, the statute is [per]emptory rather than permissive"]). The movant's failure to furnish such papers may result in the court refusing to consider them (see Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["There is no authority for compelling Special Term to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214 (c), the court may refuse to consider improperly submitted papers"]).

Under our justice system, it is generally the responsibility of the moving party to assemble complete papers which document the procedural history of the application and provide a proper foundation for the relief requested (see Lower Main St., LLC v Re & Partners, 2005 WL 6760926 [Sup Ct, Nassau County, Mar. 30, 2005, No. 13330/03]). For example, in Gerhardt v New York City Transit Auth. (8 AD3d 427, 427 [2d Dept 2004]), the Second Department dismissed an appeal to set aside a jury verdict because the appellant failed to include the trial transcript in the record, resulting in the court's inability to "render an informed decision on the merits. . . ."

Here, Plaintiff failed to perform two duties. First, it failed to comply with this Court's IAS Part 2 Rules. Part I (Motions & Special Proceedings), Subpart B (Papers), § 13, provides: "Where reference is made to a previously electronically-filed document, said document must be submitted as an exhibit on the motion" (New York State Unified Court System, Hon. Aaron D. Maslow: Part 2 Rules, https://ww2. nycourts.gov/courts/2jd/kings/civil/MaslowRules.shtml [last accessed Aug. 10, 2023]). Plaintiff's affirmation in support of the motion to reargue and renew is replete with references to previously filed documents (see NYSCEF Doc No. 150, Affirmation of Andrew Muchmore ¶¶ 2, 3, 4, 5, 6, 8, 13). The referenced documents were not submitted as exhibits.

Just as it is not the court's burden of undertaking the toilsome task of reading through pages of testimony to find support for a party's position without citation to particular lines or pages (see Unitrin Advantage Ins. Co. v Advanced Orthopedics and Joint Preservation P.C., 2018 NY Slip Op. 33296(U) *6-7 [Sup Ct, NY County 2018]), neither is it the court's responsibility to fish around in NYSCEF to locate referenced documents.

The CPLR provision quoted above delegates to individual courts to determine whether e-filed documents previously filed must be resubmitted. This Part determined that requiring documents previously e-filed to be resubmitted as exhibits enhanced the court's ability to determine a motion, especially one seeking leave to reargue and renew, which entails consideration of a previously determined matter. Courts possess the authority to enforce their rules (see Basie v Wiggs, 173 AD3d 1127 [2d Dept 2019]; Appleyard v Tigges, 171 AD3d 534 [1st Dept 2019]; Maddus v Bowman, 12 AD2d 626 [2d Dept 1960]; Stipa Sprecase v Tenreiro, 2023 WL 3972435 [Sup Ct, NY County, June 8, 2023, No. 652830/2018] [rule requiring motions to reargue or renew be made by order to show cause]; Latorre v Rahman, 2022 NY Slip Op 32044(U) [Sup Ct, NY County 2022]; Bedingfield v Dairymade Farms, Inc., 46 Misc 2d 146, [*4]148 [Sup Ct, Suffolk County 1965] ["That rule is consistent with the inherent power of the Court to control its business."]; Scully v Jefferson Truck Renting Corp., 43 Misc 3d 48 [Sup Ct, Kings County 1964]; cf. Crawford v Liz Claiborne, Inc., 11 NY3d 810 [2008]).

The second reason for denying Plaintiff's motion is that it failed to submit with its motion papers a copy of the February 22, 2023 transcript wherein the Court's prior decision can be found following oral argument. Without providing the court with a copy of the decision, this Court cannot render an informed decision on the merits of the prior decision (see John Hancock Life Ins. Co. of New York v Hirsch, 2009 WL 6824914 [Sup Ct, Westchester County, Sept. 9, 2009, No. 2703/2008], affd 77 AD3d 710 [2d Dept 2010] ["the defendant (failed) to annex a copy of the Court's previous Decision. . . . Without providing the Court with all the prior papers, it is virtually impossible to evaluate whether or not this Court overlooked or misapprehended any matters of fact or law in its Order, or whether in the present motion defendant included any matters of fact not offered on the prior motions."]).

This Court conducts motion proceedings on the record as a means of preserving oral argument should the need arise to consult it. Most often, decisions are rendered in open court on the record, followed by the issuance of a brief order. Reference to the decision on the record is an imperative to properly understand the reasons for this Court's determination. Here, Plaintiff failed to provide the court with a transcript of what transpired on February 22, 2023 with respect to its summary judgment motion.

Reading the order it is readily apparent that it contains no reasoning — merely the outcome. The order recites that a decision was rendered on the record in open court. (See NYSEC Doc No. 152, Order of February 22, 2023.) This placed Plaintiff on notice that a decision existed — that it was on the record. Plaintiff should have inquired from the Part Clerk as to which court reporter was present that day and then requisitioned a transcript of the proceedings. It did not do so.

Without first reviewing the prior decision, this Court cannot determine whether it overlooked or misapprehended the facts or law when it denied summary judgment to Plaintiff. Although this Court's Part Rules do not presently require submission of the transcript as an exhibit on a motion for reargument or renewal, in its absence there is no way this Court can intelligently consider the motion to argue and renew.^[FN1]

Plaintiff having failed to submit copies of documents referenced in the supporting affirmation as well as a copy of the transcript of the original proceedings regarding Plaintiff's summary judgment motion, its motion to reargue and renew is DENIED.