Opinion
Index No. 158146/2020 Motion Seq. Nos. 006 007
03-27-2023
CATHERINE MONTGOMERY, Plaintiff, v. 215 CHRYSTIE LLC, THE CONDOMINIUM BOARD OF MANAGERS OF 215 CHRYSTIE CONDOMINIUM Defendant.
Unpublished Opinion
PRESENT: HON. DAVID B. COHEN Justice
DECISION + ORDER ON MOTION
DAVID B. COHEN, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 192, 198, 199, 202, 203, 234, 235, 236, 237, 238, 239, 240, 241,242, 243, 244, 245, 246, 247, 248, 249, 250, 251,252, 253, 254, 255, 256, 257, 258, 259, 260, 263 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 007) 205, 206, 207, 208, 209, 210, 211,212, 213, 214, 215, 216, 217, 218, 219, 220, 221,222, 223, 224, 225, 226, 227, 228, 229, 230,231,232,261,262,264,265,266, 267 were read on this motion to/for REARGUMENT/RECONSIDERATION.
In this action arising from noise complaints made by plaintiff against defendants, which owned and/or controlled the building in which her condominium apartment is located, plaintiff moves (Seq. 006), pursuant to CPLR 3212, for summary judgment against defendants on her first cause of action seeking a permanent injunction enjoining defendants from violating Administrative Code of the City of New York § 24-201 et seq.
Defendants oppose, and cross-move, pursuant to CPLR 3212(f), for leave to conduct additional acoustic testing or, alternatively, for a stay of a decision on plaintiffs summary judgment motion. They also move (Seq. 007), pursuant to CPLR 2221(d), for leave to reargue their motion to vacate the note of issue (Seq. 005); and, upon reargument, for an order granting the motion, vacating the note of issue, and striking the matter from the trial calendar. Alternatively, they move, pursuant to CPLR 2221(e), for leave to renew their motion.
Factual and Procedural Background
This Court assumes familiarity with the facts and allegations in this case as set forth in the Court's orders entered on October 23, 2020, April 11, 2022, August 26, 2022, and December 20, 2022 (NYSCEF Doc Nos. 55, 124, 154, 200). Briefly, plaintiff commenced this action in October 2020, alleging that sound emanating from defendants' mechanical equipment room and elevator were audible in areas of her apartment in violation of noise regulations (NYSCEF Doc No. 2). In her complaint, she asserted causes of action for permanent injunctions, private nuisance, and quantum meruit (Doc No. 2). She immediately sought a preliminary injunction enjoining defendants from operating the mechanical equipment room and elevator in a manner that produced the excessive noise levels (Doc No. 3), which was denied as she failed to demonstrate that she was irreparably harmed, likely to succeed on the merits, and the equities balanced in her favor (Doc No. 86 at 35-39).
In December 2021, plaintiff amended her complaint to allege that sound emanating from the mechanical equipment room and loud music coming from a club and multiple outdoor terraces within the building were violating noise regulations, and asserted causes of action for, among other things, permanent injunction, private nuisance, and quantum meruit (Doc No. 90). She also immediately sought another preliminary injunction against defendants (Doc No. 91). Shortly thereafter, defendants cross-moved to dismiss the quantum meruit claim in her amended complaint, which stayed discovery (Doc No. 127). In April 2022, plaintiff s request for a preliminary injunction was denied after this Court found, again, that she failed to demonstrate that she was irreparably harmed or that the equities balanced in her favor (Doc No. 124), and observed that it was denying plaintiff s request "for reasons similar" to its denial of her first preliminary injunction request, which had been unanimously affirmed by the Appellate Division, First Department (see Montgomery v 215 Chrystie LLC, 201 A.D.3d 503 [1st Dept 2022], Iv dismissed 38 N.Y.3d 1125 [2022]) (Doc No. 124). It also reserved decision on defendants' cross-motion to dismiss (Doc No. 124).
The Appellate Division, First Department also unanimously affirmed this Court's denial of plaintiff's second request for a preliminary injunction (see Montgomery v 215 Chrystie LLC, 209 A.D.3d 587 [1st Dept 2022]).
Plaintiff filed a note of issue in June 2022, asserting that all discovery was complete (Doc No. 136). Defendants then moved to vacate the note of issue, arguing that it contained incorrect material facts because discovery was incomplete (Doc No. 144). More specifically, they argued that no discovery had taken place regarding plaintiff s allegations that loud music from defendants' club and outdoor terraces was violating noise regulations, due to the stay in discovery caused by defendants' undecided cross-motion to dismiss (Doc No. 145).
After defendants filed their motion to vacate, by decision and order of November 1, 2022, this Court granted their prior cross-motion to dismiss and dismissed plaintiff's fourth cause of action for quantum meruit (Doc No. 195). Therefore, the stay of discovery ended in November 2022.
By decision and order of December 20, 2022, this Court denied defendants' motion to vacate the note of issue because they failed to demonstrate that the certificate of readiness contained an incorrect material fact, and they did not provide an affirmation averring that they made good faith attempts to resolve the dispute, as required by 22 NYCRR 202.7(a) (Doc No. 200). Plaintiff now moves for summary judgment on her first cause of action for a permanent injunction (Doc No. 163). Defendants oppose, and cross-move for leave to conduct additional acoustic testing or, alternatively, for a stay of a decision on plaintiff s summary judgment motion while such testing occurs (Doc No. 234). They also move for leave to reargue/renew their motion to vacate (Doc No. 205).
Legal Analysis and Conclusions
Plaintiff's Request for Summary Judgment on Her First Cause of Action
Contrary to plaintiffs contentions, she has not established all of the elements necessary to obtain a permanent injunction. A party seeking to establish entitlement to a permanent injunction, as a matter of law, must make a prima facie showing that there was a violation of a right presently occurring, or threatened and imminent, the party has no adequate remedy at law, serious and irreparable harm will result absent the injunction, and the equities are balanced in the party's favor (see Silverman v Park Towers Tenants Corp., 206 A.D.3d 417, 418 [1st Dept 2022]). These elements are identical to those needed to obtain a preliminary injunction (see Olcott v 308 Owners Corp., 189 A.D.3d 687, 687 [1st Dept 2020]), which plaintiff has sought twice before in this action.
The only difference being that a party must also additionally demonstrate a likelihood of success on the merits of its claim to obtain a preliminary injunction (see id.).
However, both of her prior requests for a preliminary injunction were denied on the grounds that she failed to demonstrate that she suffered irreparable harm, had no adequate remedy at law, and the equities balanced in her favor, and she offers no new evidence in support of her instant summary judgment motion seeking a permanent injunction. Thus, there is no basis upon which to render a different determination now that she seeks a permanent injunction rather than a preliminary one. Therefore, plaintiff fails to make a prima facie showing that she is entitled to a permanent injunction as a matter of law (see Mini Mint Inc. v Citigroup. Inc., 83 A.D.3d 596, 597 [1st Dept 2011] [denying summary judgment where party failed to establish that it did not have an adequate remedy at law as monetary damages were sufficient]).
Defendants' Request for Leave to Reargue/Renew
"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrive at its earlier decision" (William P. Pahl Equip. Corp, v Kassis, 182 A.D.2d 22, 27 [1st Dept 1992] [internal quotation marks and citations omitted], Iv dismissed and denied 80 N.Y.2d 1005 [1992]; see Foley v Roche, 68 A.D.2d 558, 567-568 [1st Dept 1979]).
Defendants contend that reargument is warranted because this Court misapprehended the law in denying the motion based on their failure to submit an affirmation describing good faith efforts to resolve the note of issue dispute, and overlooked incorrect material facts in plaintiff s note of issue and certificate of readiness, specifically her assertions that discovery was complete. They argue that renewal is appropriate because they identified new facts, not included in their original motion to vacate, regarding their attempts to resolve the motion in good faith. Plaintiff opposes, arguing that her certificate of readiness did not contain any incorrect material facts and that no facts were overlooked in deciding the motion to vacate.
Here, defendants have demonstrated that this Court misapprehended the law in deciding the motion to vacate the note of issue. Despite 22 NYCRR 202.7(a)'s requirement that a motion must be accompanied by "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion" (22 NYCRR 202.7 [a]; see Cashbamba v 1056 Bedford LLC, 172 A.D.3d 415, 415-416 [1st Dept 2019]), the statute does not provide any consequences for a movant's failure to include such affirmation. Although the First Department has held that denial is warranted when a movant fails to include such good faith affirmation (see Matos v Mira Realty Mgt. Corp., 240 A.D.2d 214, 214 [1st Dept 1997] [affirming denial of motion to vacate note of issue where movant failed to include good faith affirmation]; Vasquez v G.A.P.L.W. Realty, 236 A.D.2d 311, 312 [1st Dept 1997] [similar]), dismissal may be avoided when efforts to resolve a dispute are included in an affirmation in support of a motion and "further efforts to try to resolve [the dispute] without motion practice would have been futile" (Lehrman v Lehrman, 211 A.D.3d 582, 583 [1st Dept 2022] [declining to dismiss motion after movant's counsel failed to include good faith affirmation because counsel described efforts to resolve dispute in a different affirmation and parties' appearance at conference with court demonstrated issue could not be resolved without motion practice]). Based on the information contained in defendants' affirmations submitted in support of their motion to vacate, and the unsuccessful attempts at resolution when the parties appeared at conferences with this Court, an affirmation articulating good faith attempts to resolve the note of issue dispute was not required, as any additional attempts to resolve the issue would have been futile (see id.}.
Defendants have also demonstrated that this Court overlooked facts in deciding the underlying motion to vacate, as plaintiff s note of issue and certificate of readiness contained incorrect material facts. Although plaintiff indicated in her note of issue that discovery in the matter was complete, the sequence of events preceding her filing of the note of issue reveals otherwise. In January 2022, approximately one month after plaintiff filed her amended complaint, defendants cross-moved to dismiss her quantum meruit claim, which had the effect of staying discovery until August 2022 when the cross motion was decided (see CPLR 3214 [b]; Manipal Educ. Arns.. LLC v Taufiq, 203 A.D.3d 662, 664-665 [1st Dept 2022] ["(D)iscovery was automatically stayed by the filing of defendants' motions to dismiss."]).
Thus, when plaintiff filed her note of issue in June 2022 and indicated that all discovery was complete, her indication was incorrect. At that point in time, discovery was stayed and the parties had only one month before that to conduct discovery related to her new claims asserting noise regulation violations from the club and outdoor terraces in defendants' building. However, such discovery regarding her new claims was never conducted, despite defendants' repeated requests to conduct acoustic testing. Therefore, defendants have demonstrated that this Court overlooked facts and misapprehended the law in deciding their motion to vacate the note of issue, and that reargument is warranted (see e.g. Gregory v National Amusements, Inc., 179 A.D.3d 468, 469 [1st Dept 2020] [affirming grant of leave to reargue where motion court found that it overlooked facts in addressing substance of underlying motion]).
Upon reargument, defendants' motion must be granted and the note of issue vacated. "A note of issue should be vacated where it is based upon a certificate of readiness that incorrectly states that all discovery has been completed" (Matos v City of New York, 154 A.D.3d 532, 533 [1st Dept 2017] [internal quotation marks and citations omitted]; see Ruiz v Park Gramercy Owners Corp., 182 A.D.3d 471, 471 [1st Dept 2020]). As described above, plaintiffs note of issue and certificate of readiness contained incorrect material facts because they stated that discovery was complete, despite the lack of discovery regarding plaintiffs allegations in her amended complaint. Therefore, vacatur is required (see Ruiz, 182 A.D.3d at 471 [vacating note of issue because discovery incomplete due to missing authorizations and receipts from plaintiff]; Matos, 154 A.D.3d at 533 [affirming vacatur of note of issue where "plaintiffs former counsel made a material misstatement that discovery was complete"]).
Given the vacatur of plaintiff s note of issue, defendants' request for leave to conduct additional acoustic testing pursuant to CPLR 3212(f) does not need to be addressed, because discovery is now reopened (see Lau v Margaret E. Pescatore Parking. Inc., 105 A.D.3d 594, 595 [1st Dept 2013] [affirming reopening of discovery after vacatur of note of issue]).
Accordingly, it is hereby:
ORDERED that plaintiff s motion for summary judgment on her first cause of action seeking a permanent injunction enjoining defendants from violating Administrative Code of the City of New York § 24-201 et seq. (Seq. 006) is denied; and it is further
ORDERED that defendants' motion for leave to reargue/renew (Seq. 007) is granted, and upon reargument, their prior motion to vacate the note of issue (Seq. 005) is granted; and it is further
ORDERED that the note of issue is vacated and the case is stricken from the trial calendar; and it is further
ORDERED that, within 15 days from the entry of this order, defendants shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office, who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further
ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website)]; and it is further
ORDERED that the parties shall appear for a status conference in Room 305, 71 Thomas Street, on April 18, 2023 at 10:00 AM.
CHECK ONE: [ ] CASE DISPOSED [X] NON-FINAL DISPOSITION
[ ] GRANTED [ ] DENIED [ ] GRANTED IN PART [X] OTHER
APPLICATION: [ ] SETTLE ORDER [ ] SUBMIT ORDER
CHECK IF APPROPRIATE: [ ] INCLUDES TRANSFER/REASSIGN [ ] FIDUCIARY APPOINTMENT [ ] REFERENCE