Opinion
No. 25537/2009.
2012-06-15
Faramarz ROSHODESH, Plaintiff, v. Adam PLOTCH, et al., Defendants.
Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq., Great Neck, for plaintiff. Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq., New York, for defendant Gerard Owners.
Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq., Great Neck, for plaintiff. Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq., New York, for defendant Gerard Owners.
Perez & Varvaro, by Keith J. Frank, Esq., Uniondale, for defendant Gerard Owners in the main action.
Baron & Baron, by David J. Baron & Kristen A. Meilak, Esqs., Forest Hills, for defendant Plotch.
Michael Cardozo, Esq., Corporation Counsel, by Warren Shaw, Esq., Assistant Corporation Counsel, New York, for defendants Eason and New York City Department of Finance.
CHARLES J. MARKEY, J.
The facts of this case are more fully given in prior decisions of this Court, found at: Roshodesh v. Plotch, 34 Misc.3d 1231(A), 2012 WL 637870, 2012 N.Y. Slip Op 50333(U) [Sup Ct Queens County 2012]; Roshodesh v. Plotch, 33 Misc.3d 1235(A), 2011 WL 6303405, 2011 N.Y. Slip Op. 52247(U) [Sup Ct Queens County 2011]; Roshodesh v.. Plotch, 32 Misc.3d 1206(A), 2011 WL 2586405, 2011 N.Y. Slip Op 51197(U) [Sup Ct Queens County 2011]; Roshodesh v. Plotch, 32 Misc.3d 1207(A), 2011 WL 2586401, 2011 N.Y. Slip Op 51198(U) [Sup Ct Queens County 2011]; Roshodesh v. Plotch, 29 Misc.3d 1220(A), 2010 WL 4540452, 2010 N.Y. Slip Op 51912(U) [Sup Ct Queens County 2010].
Briefly, in early 2006, defendant Gerard Owners Corp. (“Gerard”), the owner of a building located at 70–25 Yellowstone Boulevard, Forest Hills, New York, began three separate summary nonpayment proceedings against plaintiff Roshodesh in the New York City Civil Court, County of Queens which involved Apartments 3U, 3V, and 7Y. The parties eventually conducted a joint trial of the three proceedings before Judge Tao on March 3, 2008, and Thomas Giles, a guardian ad litem, defended the proceedings on behalf of Roshodesh, who did not himself appear. After the trial, Judge Tao awarded Gerard a judgment of $35,756.37 in the 3V proceeding, a judgment of $18,090.17 in the 3U proceeding, and a judgment of $13,393.12 in the 7Y proceeding.
Upon being served with notice of entry of the judgments and orders, Roshodesh attempted to obtain stays, and he obtained a temporary stay in the 3V proceeding conditioned upon the deposit of $35,756.37 with the New York City Department of Finance. The Department of Finance erroneously released the sum deposited in the 3V proceeding to the attorneys for Gerard, and they kept the sum in their escrow account.
After the Appellate Term denied Roshodesh's motion for a stay pending appeal of the 7Y judgment, Gerard issued a second execution notice to the Sheriff directing him to levy on the shares of stock pertaining to Apartment 7Y. The Sheriff did so, and he sold the stock at a public auction held on or about November 19, 2008. Defendant Adam Plotch successfully bid $96,000 for the stock.
The plaintiff began this action on or about September 22, 2009. The first cause of action is for a judgment declaring that the Sheriff's sale of the shares allocated to Apartment 7Y was void and that the plaintiff lawfully owns the shares. The second cause of action is against the Sheriff for negligence. The third cause of action is for an accounting of the rents paid by the tenant in Apartment 7Y to defendant Plotch. The fourth cause of action is for a “restraining order” prohibiting, inter alia, the sale of Apartment 7Y.
Defendant Gerard Owners Corp. answered the complaint and asserted three counterclaims. The first counterclaim alleges that Gerard Owners Corp. is the owner and proprietary lessor of the building located at 70–25 Yellowstone Boulevard, Forest Hills, New York and that the plaintiff is a shareholder and the proprietary lessee of Apartment 3U. The defendant owner alleges that the plaintiff defaulted on his obligation under the lease to make monthly maintenance payments in the amount of $746.05 for Apartment 3U. The second counterclaim alleges that the plaintiff, the proprietary lessee of Apartment 3V, defaulted on his obligation under the lease to make monthly maintenance payments in the amount of $1,629.78. The third counterclaim alleges that Gerard Owners Corp. is entitled to recover attorney's fees incurred in this action based on provisions in the proprietary leases for Apartments 3U and 3V.
Gerard successfully moved for summary judgment dismissing the complaint against it and all of the cross claims against it ( see, Roshodesh v. Plotch, 32 Misc.3d 1207(A), 2011 WL 2586401, 2011 N.Y. Slip Op 51198(U)). Upon reargument, the Court, on December 14, 2011, adhered to its prior determination ( see, Roshodesh v. Plotch, 33 Misc.3d 1235(A), 2011 WL 6303405, 2011 N.Y. Slip Op 52247(U)). Defendant Plotch also successfully moved for summary judgment dismissing the complaint against him ( see, Roshodesh v. Plotch, 34 Misc.3d 1231(A), 2012 WL 637870).
Pursuant to a decision and order dated November 10, 2010, this Court denied that branch of Gerard's motion which was for an order dismissing the plaintiff's first affirmative defense to the second counterclaim, finding: “In regard to Apartment 3V (where the plaintiff resides), the plaintiff tenant has adequately alleged a breach of the warranty of habitability through the failure to, inter alia, provide heat.” (Roshodesh v. Plotch 2010 WL 4540452, slip op at 2).
Pursuant to a decision and order dated June 29, 2011, this Court, upon reargument, (1) granted Gerard summary judgment dismissing several affirmative defenses pertaining to the first counterclaim and (2) granted Gerard summary judgment on the issue of liability arising under the first counterclaim ( see, Roshodesh v. Plotch, 32 Misc.3d 1206(A), 2011 WL 2586405).
The decision and order dated June 29, 2011, provided:
Upon reargument, that branch of Gerard's prior motion which was for an order pursuant to RPL section 220 directing the plaintiff to pay use and occupancy for Apartments 3U and 3V pendente lite is granted to the extent that plaintiff Roshodesh shall continue to pay use and occupancy at the rate provided in the lease on each rental due date until resolution of the underlying counterclaims.
In regard to the first counterclaim, seeking to recover the maintenance owed for Apartment 3U, Gerard has already been awarded summary judgment on the issue of liability. Gerard, upon the foregoing papers, now seeks summary judgment on the issue of damages in the sum of $37,380.90 representing unpaid maintenance for Apartment 3U through December, 2011. The Court of Appeals has emphasized: “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986];accord, Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012] ).
Gerard successfully carried this burden through the submission of an affidavit from Tony Pellosie, an employee of Gerard J. Picaso, Inc., the managing agent for the cooperative, who swears that maintenance arrears have accrued since March, 2008 and that the total outstanding balance for Apartment 3U, through December, 2011, is $37,380.90. The burden on this branch of the motion shifted to plaintiff Roshodesh to produce evidence in admissible form showing that there is an issue of fact which must be tried ( see, Alvarez v.. Prospect Hospital, 68 N.Y.2d 320,supra.) He failed to carry this burden.
The plaintiff merely submitted a short affirmation from his attorney who claims that he found the arrears reports to be “incomprehensible.” The arrears report for Apartment 3U, however, shows for the date of September 8, 2008, an entry under the column headed “payments” in the amount of $18,115.98 which reduced the “running balance” from $22,987.15 to $4,871.17. As explained to the plaintiff's attorney by Gerard's attorney, in an e-mail sent February 22, 2012, the arrears report does credit Roshodesh with the payment of the judgment obtained in the Civil Court.
Gerard did not carry its burden on the branch of the motion seeking, inter alia, summary judgment dismissing the plaintiff's first affirmative defense as it pertains to the second counterclaim. Pursuant to the decision and order dated November 10, 2010, this Court denied that branch of Gerard's motion which was for an order dismissing the plaintiff's first affirmative defense to the second counterclaim. The first affirmative defense raises a breach of the warranty of habitability, and Gerard's moving papers do not discuss the merits of this defense. Roshodesh's failure to pay use and occupancy as directed by a prior order of this Court is not a basis for dismissing the first affirmative defense.
Gerard's attempt to obtain summary judgment on its third counterclaim, which concerns attorney's fees as provided in the leases, is premature since the second counterclaim remains open.
Gerard's motion, accordingly, is decided as follows:
1. the branch of the motion which is for summary judgment on the first counterclaim in the amount of $37,380.90 is granted;
2. the branch of the motion which is for summary judgment on the second counterclaim is denied;
3. the branch of the motion which is for summary judgment on the third counterclaim is denied as premature; and
4. the branch of the motion which is for an order finding plaintiff Roshodesh to be in default of his obligation to pay use and occupancy as required by this Court's order dated June 29, 2011 is granted.
The foregoing constitutes the decision, order, and opinion of the Court.