Opinion
LT-005473-10.
Decided May 16, 2011.
Ira B. Pollack Associates, PLLC, Attorneys for Petitioner, Port Chester, New York.
Thomas DeMartino, Respondent Pro Se.
Vivian M. Williams, Esq., Attorney for movant TDI Construction Inc., New York, New York.
Sahn, Ward, Coschignano Baker, LLC, Attorneys for Respondent Angela Militana, Uniondale, New York.
The Respondent's motion to restore and vacate the prior order of this Court is denied.
This action was initiated by the Landlord, Angelina Militana (hereinafter "Petitioner") against Thomas DeMartino (hereinafter "Respondent" in this action), and Angela Militana ("Respondent" named in initial proceeding). The prior action was a non-payment proceeding filed and resulting from Respondent, Thomas DeMartino and Angela Militana, jointly owing rents as far back as June 2010 to the Petitioner. The Respondent, Thomas DeMartino, participated in a trial before this Court in February of 2011. Respondent, Angela Militana, defaulted. After trial, a money judgment in the sum of $11,400, for use and occupancy past due from March 2010, was awarded to Petitioner against both Respondents. In addition, as a result of the trial that took place before this Court, a warrant of eviction was awarded to Petitioner, which provides for recovery of the premises, including the First Floor Apartment and basement at 39 Pequot Avenue, Port Washington, New York 11040.
TDI Construction Inc., represented by Vivian M. Williams, Esq., moves by order to show cause to vacate the judgment dated February 9, 2011, which awarded possession to Petitioner and a money judgment against Respondents, Thomas DeMartino and Angela Militana in the sum of $11,400. The said order to show cause seeks to vacate the warrant dated February 17, 2011 and the order dated February 2, 2011, rendered after a trial awarding Petitioner the relief granted in the said judgment; namely a warrant stayed until February 28, 2011, and a money judgment in the sum of $11,400 against both Respondents, Thomas DeMartino and Angela Militana.
The moving party TDI Construction Inc. (hereinafter "TDI"), contends in the order to show cause that it is a tenant at the premises and Petitioner failed to join TDI. Therefore, Respondent contends that the proceeding should be dismissed pursuant to CPLR 1001, because it is a necessary and indispensable party, or in the alternative, allowing TDI to intervene as a party and file an answer.
At the outset of this non-payment action, both Respondent and Angela Militana (Respondent) were alleged to be involved in divorce proceedings. The alleged divorce resulted in at best "confusion" on behalf of the Respondents and their respective representation. This "confusion" had the adverse effect of prolonging the action by way of adjournments. This Court was advised that "John C. Farrell, Esq.," of the law firm Sahn, Ward, Coschignano Baker, PLLC would be appearing for both Angela Militana and Thomas DeMartino. The Court was later advised that due to an impending divorce between the respective Respondents, separate counsel would be required. A series of similar instances occurred before this Court, resultantly "buying time" on behalf of the Respondents. The eventual trial occurred February 2, 2011, which is far from its commencement in September of 2010.
On November 18, 2010, Vivian Williams did appear and filed a notice of appearance for Respondent Mr. DeMartino only. Settlement negotiations were then conducted at length with the aid of this Court, however, no settlement was reached. The matter was then adjourned to December 9, 2010 and set for a trial. However, on that date Respondent Mr. DeMartino appeared before this Court absent counsel and represented to this Court that he "fired" Vivian Williams. The trial was further adjourned to allow for Mr. DeMartino to seek counsel. However, on February 2, 2011 this matter did go to trial and Mr. DeMartino represented himself. Respondent Angela Militana defaulted at the trial. An order was then issued by this court, awarding the Petitioner a money judgment of $11,400 for past rent due, judgment of possession and warrant of eviction.
During the trial four checks were introduced to show payment from Respondent as follows:
(1)March 18, 2010, check from Thomas DeMartino in the amount of $1,400.
(2)Official bank check from TD Bank, dated April 21, 2010, in the amount of $1,350. payable to Angelina Militana; the check has the re for Angela Militana.
(3)June 7, 2010 check from Thomas DeMartino payable to Petitioner in the amount of $1,400.
(4)July 1, 2010 check from Thomas DeMartino payable to Petitioner in the amount of $1,200.
No evidence was produced by Respondents to demonstrate that TDI was a tenant at the premises, or paid the rent. Thomas DeMartino, who is the principal of TDI, failed to present any testimony to demonstrate that TDI had any tenancy.
The order to show cause is only supported by the affirmation of Vivian Williams, Esq. who has no personal knowledge of the facts herein. An affirmation of an attorney who has no personal knowledge of the facts is a nullity and should be disregarded by the Court. See Citibank, N.A. v. Joffee, 265 AD2d 291, 696 NYS2d 190 (2nd Dept 1999), and Hernandez v. Nelson, 143 AD2d 632, 533 NYS2d 112 (2nd Dept 1988).Thus, there is no evidentiary basis for the claim that TDI is a tenant. A sworn affidavit of the principal of TDI, Thomas DeMartino, is conspicuously absent.
This Court will not allow Respondents to play litigation "games" when attorney Vivian Williams and/or Respondent, Thomas DeMartino, had a full and fair opportunity to raise the issue of TDI prior to or during the trial. Respondent, Thomas DeMartino and TDI are estopped from raising this issue and have waived their right to do so. This Court is aware of CPLR 1001 which allows for joinder at various stages of litigation. However, to allow this issue to be raised now is nothing but a delaying tactic well calculated to buy Respondents as much time as they can gain by this tactic. This type of litigation posturing interfers with judicial economy and efficient resolution of cases. Courts are facing increasing caseloads and have a limited time to handle their heavy burden.
In Buechel v. Bain, 97 NY2d 295, 740 NYS2d 252 (2001), the court held that the defendants' attorneys were in privity with their former law partner concerning the validity of the fee arrangement and were bound by the prior determination. The court specifically criticized the defendants for their conscious, tactical decision, for not taking a more active role in the prior litigation by attempting to relitigate the very same issue and facts in the second litigation.
This Court is aware that the facts in Buechel included two separate actions where the doctrine of collateral estoppel was invoked. However, the rationale of Buechel is applicable to the case at bar because Respondent, Thomas DeMartino, as principal of TDI, is in privity with his company TDI, and, thus, had a full and fair opportunity to raise TDI as a necessary party at or before trial.
Respondent, Thomas DeMartino, cannot be allowed to get a "second bite of the apple" through the guise of TDI as a necessary party with whom he is in privity. In Specialty Restaurants Corp. v. Barry, 236 AD2d 754, 653 NYS2d 972 (3rd Dept 1997), the court indicated that where a defendant is the president, shareholder and director of a corporation, this constitutes controlling status and privity with the corporation.
Plaintiff urges that defendant and R.C.C. were in privity with each other, such that defendant was provided with a full opportunity to litigate in Bankruptcy Court the issue of his obligation to make good R.C.C.'s debts and is now foreclosed from taking issue with Bankruptcy Court's determination. Defendant has admitted that he is president, shareholder and director of R.C.C. Controlling status over R.C.C. constitutes, as a matter of law, privity with it ( see, Green v. Santa Fe Indus., 70 NY2d 244, 254).
The doctrine of privity was also applied in Hernandez v. Nelson, 143 AD2d 632, 533 NYS2d 112 (2nd Dept 1988), wherein, the court refused to allow the individual to relitigate issues from the prior action where the facts demonstrated that he was a principal and managing agent of the subject building involved in the Landlord/Tenant dispute.
Conclusion
Based upon the above, Respondent, Thomas DeMartino, is in privity with TDI and TDI is bound by the trial held in February of 2011. Respondent, Thomas DeMartino, will not be allowed to relitigate this case a second time through the guise of TDI.
So Ordered: