Opinion
Index No. 83411/2015
05-10-2016
ROGER MORRIS APARTMENT CORP., Petitioner, v. EDELMIRO VARELA et al., Respondents.
DECISION/ORDER
Present: Hon. Jack Stoller Judge, Housing Court Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion.
| Papers | Numbered |
|---|---|
| Notice of Motion and Supplemental Affidavit and Affirmation Annexed.... | 1, 2, 3 |
| Notice of Cross-Motion and Supplemental Affidavits Annexed | 4, 5, 6, 7 |
| Affirmation and Affidavit in Opposition To the Cross-Motion etc. | 8, 9 |
| Affidavit In Reply | 10 |
Roger Morris Apartment Corp., the petitioner in this proceeding ("Petitioner"), commenced this holdover proceeding against Edelmiro Varela, the respondent in this proceeding ("Respondent"), seeking possession of 478 West 158th Street, Apt. 22, New York, New York ("the subject premises") on the basis that Respondent breached his lease by installation of a central air-conditioning system ("the HVAC system") without Petitioner's permission. Respondent interposed an answer containing defenses of waiver, promissory estoppel, and that Petitioner actually approved installation of the HVAC system. Respondent now moves for leave to obtain discovery. Petitioner cross-moves for summary judgment in its favor. The Court consolidates both motions for consideration herein.
Edelmiro Varela is not the only respondent in this proceeding, but he is the only one to swear out an affidavit in support of the motion, so for purposes of convenience only, and without prejudice to the rights of any party, the Court in this decision only refers to Edelmiro Varela as "Respondent."
As a summary judgment motion raises threshold issues, and as a summary judgment motion would stay discovery, CPLR §3414(b), Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 431 n.3 (1981), Jeffers v. American Univ. of Antigua, 125 A.D.3d 440, 442 (1st Dept. 2015), the Court first considers Petitioner's cross-motion for summary judgment.
There is no dispute between the parties that Petitioner is a residential cooperative corporation and that Respondent is a shareholder with a proprietary lease ("the lease") that requires Petitioner's approval prior to alterations on the subject premises. While Petitioner concedes that Respondent did in fact request permission to install a central air conditioning system by a proposal ("Respondent's proposal"), and while Petitioner concedes that an email from its registered managing agent ("the agent") dated April 1, 2015 stated that Petitioner fully approved Respondent's proposal, Petitioner shows that Respondent's proposal not only did not indicate that Respondent would install the HVAC system, but it affirmatively stated that Respondent would not do any HVAC work and that Respondent would not do any work affecting that envelope of the building in which the subject premises is located ("the Building"). Thus, Petitioner argues that Respondent's installation of the HVAC system, with work done on the envelope of the Building, violated the lease.
However, Respondent annexes to his motion-in-chief an affidavit of the designer for its general contractor ("the designer"). The designer avers that he had multiple meetings with the agent, that he told the agent of Respondent's intent to install the HVAC system before Respondent submitted Respondent's proposal, that the agent expressed support for the HVAC system, that the agent affirmatively showed the designer the location on the exterior of the Building where Respondent could install a compressor for the HVAC system, that the designer discussed with the agent whether he had to prepare plans and get a permit from the New York City Department of Buildings ("DOB"), that the agent explained that he wished to avoid the involvement of DOB, that the agent advised the designer that he consented to the installation of the HVAC system so long as the system was quiet and had a cooling capacity of less than three tons, and that as no DOB permit would be required, the designer need not include engineering or mechanical plans pertaining to the HVAC system in Respondent's proposal. Respondent avers that he relied on the agent's representations in submitting Respondent's proposal to Petitioner without a reference to the HVAC system.
In support of Petitioner's motion for summary judgment, the agent disputes the designer's account, specifically denying that he knew about Respondent's plan to install the HVAC system before Respondent installed it, and denying that he told the designer that he wanted to avoid the involvement of DOB.
The agent's very affirmation in support of Petitioner's motion, together with his designation as Petitioner's agent, evinces that the agent had apparent authority to bind Petitioner with his representations to Respondent and/or the designer. Hallock v. State, 64 N.Y.2d 224, 231 (1984), 1230 Park Assoc., LLC v. Northern Source, LLC, 48 A.D.3d 355, 355-356 (1st Dept. 2008). Accordingly, the most obvious obstacle Petitioner must overcome in order to obtain summary judgment is the apparent factual dispute between the agent and the designer about whether the agent gave his consent to install the HVAC system. While Petitioner labors to characterize the designer's averment that the agent did not want the designer to incorporate the HVAC system in Respondent's proposal as "beyond the realm of reason," the Court shall not make an assessment of credibility on a motion for summary judgment. Ferrente v. American Lung Ass'n, 90 N.Y.2d 623, 631 (1997), Curcio v. Samson Constr. Co., Inc., 82 A.D.3d 664, 665 (1st Dept. 2011).
Petitioner also characterizes the designer's averment as hearsay. However, the designer averred in support of Respondent's motion that he personally heard the agent make the statements the designer relied on. As the agent is, after all, the agent of Petitioner, the agent's statements are admissible as admissions, particularly as the agent made those statements within the scope of his authority. Loschiavo v. Port Auth. of N.Y. & N.J., 58 N.Y.2d 1040, 1041 (1983), Candela v. City of New York, 8 A.D.3d 45, 47 (1st Dept. 2004). As the record on this motion demonstrates that Petitioner's intent was not unequivocably clear, muddied as it was by the designer's sworn allegations as to the agent's representations, the Court cannot resolve this factual dispute by summary judgment. Nicholas Gray & Co. v. Stahl, 76 A.D.2d 773 (1st Dept.), appeal dismissed, 51 N.Y.2d 769 (1980). The Court therefore denies Petitioner's motion for summary judgment, without prejudice to the causes of action, defenses, and/or theories of the case of either party upon a trial of this matter.
The placement of the affidavit of the designer in Respondent's motion-in-chief rather than in opposition to Petitioner's cross-motion does not change the outcome herein. When the record on a summary judgment motion discloses the existence of material triable issues of fact, the Court shall deny summary judgment. DG Liquidation, Inc. v. Anchin, Block & Anchin, LLP, 300 A.D.2d 70 (1st Dept. 2002).
Respondent moves for leave to obtain discovery, essentially to ascertain Petitioner's reason for rescinding permission to build the HVAC system. Accordingly, Respondent seeks production of documents such as minutes of meetings of Petitioner's board where the board discussed the HVAC system and communications between members of Petitioner's board and the agent. Respondent also seeks to depose a representative of Petitioner.
One of the elements of "ample need" a party to a summary proceeding must show in order to obtain leave for discovery is a need to determine information directly related to the party's cause of action. Lonray, Inc. v. Newhouse, 229 A.D.2d 440, 440-41 (2nd Dept. 1996), New York University v. Farkas, 121 Misc.2d 643, 647 (Civ. Ct. N.Y. Co. 1983). In part based upon this criteria, Courts routinely grant leave to obtain discovery against parties in summary proceedings who claim succession to rent-regulated tenancies, Lemle v. Bascourt, N.Y.L.J. June 15, 2001 at 20:1 (App. Term 1st Dept.), Quality & Ruskin Assocs. v. London, N.Y.L.J. April 29, 2005 at 34:4 (App. Term 2nd& 11th Depts.), respondents in a nonprimary residence holdover proceedings, 542 E. 14th St. LLC v. Lee, 66 A.D.3d 18, 23 (1st Dept. 2009), landlords seeking possession of rent-regulated apartments for personal use, Bouton v. De Almo, 12 Misc.3d 132(A) (App. Term 1st Dept. 2006), and landlords who increased rents for rent-stabilized apartments by purported individual apartment improvements. 1514 W. 8th St. Owner LLC v. Herrera, N.Y.L.J. July 22, 2009 at 26:3 (Civ. Ct. Kings Co. 2009). Parties who must disclose evidence as such commonly have exclusive knowledge of the subject matter of the disclosure: only an occupant of an apartment, and not a landlord, for example, knows of an occupant's family relationship with a prior tenant and the facts of the occupant's primary residence. Only a landlord, and not a tenant, knows the facts supporting a landlord's desire to recover a rent-regulated apartment for the landlord's personal use. Only a landlord, and not a tenant, knows about individual apartment improvements upon which a landlord predicates a rent increase.
In contrast to the summary proceedings where parties routinely obtain discovery, parties do not evince sufficient need in order to obtain such leave when their adversaries do not have exclusive knowledge of the matter at hand or where the parties seeking discovery are themselves the ones with the knowledge of the matter. See, e.g., Valor Realty LLC v. Ragno, 26 Misc.3d 132(A) (App. Term 1st Dept. 2010) (a tenant generally will be unable to demonstrate the "ample need" required to obtain disclosure in a nonprimary residence proceeding); Ludor Properties LLC v. Debrito, 48 Misc.3d 142(A) (App. Term 1st Dept. 2015) (a party asserting a succession defense does not have ample need to obtain discovery, as the elements of that defense rest peculiarly within that party's own knowledge).
Here, neither party disputes that Respondent's proposal did not reference the HVAC system or work on the envelope of the Building and that Respondent went ahead and installed the HVAC system and worked on the envelope of the Building anyway. Accordingly, the outcome of the dispute in this proceeding turns on Respondent's defenses. Respondent's defenses to this matter — promissory estoppel, waiver, that Respondent did not breach the proprietary lease because Petitioner approved Respondent's proposal — all hinge on Petitioner's representations to and communications with Respondent and Respondent's agents and employees, such as the designer. Petitioner does not have exclusive control over documents memorializing Petitioner's representations to and communications with Respondent; indeed, Respondent could not argue that it relied on Petitioner's representations, approvals, or waivers if Respondent had not seen them. Accordingly, Petitioner does not have the exclusive control over such material that comprises an important aspect of "need."
To the extent that Respondent seeks production of documents that Petitioner may have exclusive control over — minutes of Board meetings or communications between members of Petitioner's board and the agent, for example — Respondent appears to seek information about Petitioner's motivations herein. However, Respondent does not connect that information with its defenses of waiver, promissory estoppel, or that Petitioner approved installation of the HVAC system. If Petitioner proves at trial that the agent did not excuse Respondent from incorporating the HVAC plans into Respondent's proposal, then Respondent's failure to include the HVAC plans in Respondent's proposal would indeed render Respondent's subsequent HVAC work without Petitioner's consent to be in breach the lease, regardless of whatever of Petitioner's bad-faith motivations document production would hypothetically reveal. Conversely, if Respondent proves at trial that Petitioner evinced a waiver, made representations to Respondent that Respondent relied upon, and/or approved Respondent's proposal, Petitioner's potentially good reasons that Respondent may not have been aware of to deem Respondent in breach of his lease would not alter the outcome either. Accordingly, internal communications among members and agents of Petitioner have no discernible impact on the outcome of this matter, and Respondent does not show a need, much less an ample need, to obtain discovery.
For the same reasons, Respondent does not show ample need to obtain discovery relating to Respondent's counterclaim that Petitioner's disengaging of the HVAC system gives rise to a cause of action pursuant to RPAPL §713(10). There is no dispute on the motion practice on this record that Petitioner disconnected the HVAC system, and no apparent additional probative value to be gained from learning Petitioner's reasons for doing so. Mens rea is not an element of an illegal lockout proceeding. In the meantime, Respondent has peculiarly exclusive knowledge of the effect of Petitioner's actions on Respondent's ability to use the subject premises. In any event, Petitioner's papers on this motion practice already amply state the reasons for disconnecting the HVAC system. Respondent therefore does not evince the requisite need to satisfy the criteria applicable to a motion for leave to obtain discovery. Accordingly, the Court denies Respondent's motion for leave to obtain discovery.
The Court having denied the motions of both parties, this matter is in a trial-ready posture. The Court calendars this matter for trial on June 14, 2016 at 9:30 a.m. in part C, Room 844 of the Courthouse located at 111 Centre Street, New York, New York.
This constitutes the decision and order of this Court. Dated: New York, New York
May 10, 2016
/s/_________
HON. JACK STOLLER
J.H.C.