Opinion
25537/2009
02-28-2012
Faramarz Roshodesh, Plaintiff, v. Adam Plotch, et al., Defendants.
For Plaintiff:Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq. For Defendant Gerard Owners: Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq. For Defendant Gerard Owners in the main action: Perez & Varvaro, by Keith J. Frank, Esq. For Defendant Plotch: Baron & Baron, by David J. Baron & Kristen A. Meilak, Esqs. For Defendants Eason and New York City Department of Finance: Michael Cardozo, Esq., Corporation Counsel, by Warren Shaw, Esq.
For Plaintiff:Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq.
For Defendant Gerard Owners: Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq.
For Defendant Gerard Owners in the main action: Perez & Varvaro, by Keith J. Frank, Esq.
For Defendant Plotch: Baron & Baron, by David J. Baron & Kristen A. Meilak, Esqs.
For Defendants Eason and New York City Department of Finance: Michael Cardozo, Esq., Corporation Counsel, by Warren Shaw, Esq.
Charles J. Markey, J.
The facts of this case are more fully given in the following, prior decisions of this Court:Roshodesh v Plotch, 33 Misc 3d 1235(A), 2011 WL 6303405, 2011 NY Slip Op. 52247(U) [Sup Ct Queens County 2011]; Roshodesh v Plotch, 32 Misc 3d 1206(A), 2011 WL 2586405, 2011 NY Slip Op 51197(U) [Sup Ct Queens County 2011]; Roshodesh v Plotch, 32 Misc 3d 1207(A), 2011 WL 2586401, 2011 NY Slip Op 51198(U) [Sup Ct Queens County 2011]; Roshodesh v Plotch, 29 Misc 3d 1220(A), 2010 WL 4540452, 2010 NY Slip Op 51912(U) [Sup Ct Queens County 2010].
Briefly, in early 2006, defendant Gerard Owners Corp., 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 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.
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 NY Slip Op. 51198[U], supra). 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 NY Slip Op. 52247[U], supra). This Court decided, inter alia, that Roshodesh had deposited the sum of $35,756.37 in connection with the 3V proceeding and that the subsequent erroneous release of the funds did not impair the sheriff's sale in the 3Y proceeding.
On November 21, 2011, defendant Plotch submitted the instant motion for summary judgment dismissing the complaint against him. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law." (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). Defendant Plotch successfully carried this burden. The doctrine of the law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding (Town of Angelica v Smith, 89 AD3d 1547 [4th Dept. 2011]; Brownrigg v New York City Hous. Auth., 29 AD3d 721, 722 [2nd Dept. 2006]).
This Court's determinations on Gerard's motion for summary judgment and Roshodesh's motion for reargument are the law of the case (see, Carmona v Mathisson, ___ AD3d ____, 2012 WL 444065, 2012 NY Slip Op 01105, slip op. at 1 [1st Dept. 2012]; Morrison Cohen, LLP v Fink, ___ AD3d _____, 2012 WL 445918, 2012 NY Slip Op 01125, slip op. at 1 [1st Dept. 2012]; Roldan v Astoria Generating Co., L.P., 90 AD3d 1014 [2nd Dept. 2011]).
This Court has already decided, as a matter of law, that the complaint has no merit. This Court has previously rejected Roshodesh's arguments on the merits on the prior motions (see, Roldan v Astoria Generating Co., L.P., 90 AD3d 1014, supra). The burden on this motion shifted to the plaintiff to demonstrate why summary judgment in Plotch's favor is not warranted (see, Alvarez v Prospect Hospital, 68 NY2d 320 , supra). The plaintiff failed to carry this burden.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________
Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York
February 28, 2012