Opinion
LT-000700-11
12-15-2011
STP Associates, LLC, Petitioner, v. Nancy Drasser, et al, Respondent(s)
AS AND FOR A THIRD AFFIRMATIVE DEFENSE AND AS FOR A FOURTH AFFIRMATIVE DEFENSE AND AS FOR A FIFTH AFFIRMATIVE DEFENSE AND AS FOR A SIXTH AFFIRMATIVE DEFENSE AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE AND AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE Mason & Mason., Attorneys for Petitioner; Frederick C. Kelly, Esq., Attorney for Respondents.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE AND AS FOR A FOURTH AFFIRMATIVE DEFENSE AND AS FOR A FIFTH AFFIRMATIVE DEFENSE AND AS FOR A SIXTH AFFIRMATIVE DEFENSE AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE AND AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Mason & Mason., Attorneys for Petitioner; Frederick C. Kelly, Esq., Attorney for Respondents.
Scott Fairgrieve, J.
STP's Motion for Partial Summary Judgment Dismissing Affirmative Defenses/Affidavit/Exhibits (First Group of Proceedings)
STP's Motion in Limine/Affidavit/Exhibits(Second Group of Proceedings)
Respondents' Opposition to STP's Motions and Cross Motion/Affirmation (Combined First and Second Group of Proceedings)
STP's Affirmation in Reply to Respondents' Opposition to STP's Motion and Opposition to Respondents' Cross Motion(s)/Exhibits (Combined First and Second Group of Proceedings)
Respondents' Reply on Cross Motion/Exhibit (Combined First and Second Group of Proceedings)
Respondents' Motion for Summary Judgment/Affidavit/Exhibits (Third Group of Proceedings)
STP's Affirmation in Opposition and Cross Motion for Summary Judgment/Affidavit/Exhibits (Third Group of Proceedings)
Respondents' Reply and Affirmation in Opposition to Cross Motion
STP's Affirmation in Reply to Respondents' Opposition to Cross Motion (Third Group of Proceedings)
This decision addresses motion practice in connection with twenty-six related summary holdover proceedings. While most of the issues raised by and relief sought in these separately filed motions affect, at least in part, all of the proceedings, these motions initially will be identified and discussed in connection with the specific proceedings to which they relate. In connection with the first group of proceedings , the petitioner, STP Associates, LLC ("STP") moves for summary judgment dismissing the respondents' second, third, fourth, fifth, sixth, seventh, and eleventh affirmative defenses in their separately but essentially identical filed answers to the petitions on the grounds that such defenses are barred by the doctrines of res judicata, collateral estoppel, and/or stare decisis. STP also moves for an award of sanctions. In connection with the second group of proceedings, STP moves in limine for an order excluding any evidence, references to evidence, testimony or argument relating to anticipated defenses which are barred by the doctrines of res judicata and collateral estoppel. In connection with the two above groups of proceedings (involving a total of twenty-three proceedings), those respondents collectively oppose STP's above referenced motions and cross-move for sanctions, for summary judgment dismissing the petitions, and alternatively for a stay of the proceedings pursuant to CPLR §2201, to consolidate the proceedings pursuant to CPLR §602, and for an order directing STP manager/member, Larry Rush, to appear for deposition. STP submits a reply addressing both of its original motions and also submits opposition to the respondents' cross motion. The respondents in these twenty-three proceedings submit a collective reply on their cross motion.
Involving the following thirteen respondents (identified by last name and file number): Dyckman (LT 1102-11); Kostos (LT 723-11); McCann (LT 724-11); Mitchell (LT 1101-11); Nargi (LT 725-11); Pedote (LT 1103-11); Portnoy (LT 726-11); Schmidt (LT 727-11); Sessa (LT 727-11; Snyder (LT 729-11); St. Clair (LT 728-11); Stonestreet (LT 730-11); Walsh (LT 732-11).
In connection with the three remaining proceedings, i.e., the third group of proceedings, those respondents move for consolidation pursuant to CPLR §602, for summary judgment dismissing the petitions, summary judgment on their counterclaims, and alternatively, for discovery pursuant to CPLR §408. STP opposes the motion and cross-moves for summary judgment dismissing certain affirmative defenses, to strike the jury demand in the Rappaport proceeding, and for leave to amend the verification of the pleadings. These respondents oppose the cross motion and submit a reply on their original motion. STP submits a reply on its cross motion.
Involving the following three respondents (identified by last name and file number): Bonner (LT 2151-11); Rappaport (LT 2152-11); and Caramico (LT 2153-11).
Factual and Procedural Background
The property at issue in these twenty-six related proceedings is the Syosset Mobile Home Park located at 80-16 West Jericho Turnpike, Syosset, New York. STP purchased the property in 2007. The respondents, all mobile home owners, are the remaining tenants of the property. On or about June 1, 2007 STP sent each tenant of the property a written lease in which it offered a one-year rental agreement to commence on September 1, 2007. None of the respondents executed the offered lease agreement. On or about September 19, 2007 STP sent notices of termination to the respondents.
In November 2007 STP commenced eviction proceedings against the tenants in this Court. In response to those proceedings, a group of tenants (including all of the respondents in the instant proceedings, except for Fromia and Garrett) commenced an action in the Supreme Court, Nassau County, entitled Amatuzio v. STP Associates, LLP, index no. 021154/07) (the "first Supreme Court action"). Those tenants set forth in their complaint four causes of action. In the first, they sought to void the sale of the property from Hormi Holding to STP based upon an alleged violation of Real Property Law ("RPL") §233(g)(3). In the second cause of action, these tenants sought a court order directing STP to provide to them a six-month notice of change of use prior to commencing eviction proceedings. The third cause of action sought an order directing STP to modify the proposed written lease to include certain terms and conditions as set forth by the plaintiffs. The fourth cause of action alleged that the proposed rent increase by STP violated RPL §233(g)(3) and sought an order directing compliance with the requirements set forth therein.
In addition to filing the first Supreme Court action, those tenants also sought and obtained a temporary restraining order from the Supreme Court preventing STP from continuing the holdover proceedings initiated in this Court and preventing this Court from issuing a judgment of eviction. However, the Supreme Court denied those tenants' motion for a preliminary injunction staying the pending holdover proceedings. In denying the tenants' application for a preliminary injunction, the Supreme Court determined, among other things, that STP had offered leases to the tenants in compliance with RPL §233. Inasmuch as none of these offered leases were executed, the Supreme Court held that month-to-month tenancies had been created (see Amatuzio v. STP Assoc., LLC, 2008 NY Slip. Op. 30867[U], 2008 NY Misc LEXIS 8742 [Sup Ct. Nassau County 2008]).
The tenants appealed from the order in the first Supreme Court action, and applied for and obtained a further stay of the summary proceedings from the Appellate Division, Second Judicial Department, pending the determination of their appeal. However, on May 30, 2008, pursuant to a stipulation between the parties, the tenants agreed to withdraw the appeal. The parties also agreed in such stipulation as follows: (1) STP would retroactively withdraw all previous Notices to Terminate served on the tenancies, retroactively restore the tenancies, and withdraw the pending holdover summary proceedings; (2) STP would serve six month Change of Use notices, pursuant to RPL §233(b)(6), to the tenants prior to commencing a summary holdover proceeding based on a month-to-month tenancy; and (3) the tenants would withdraw the second cause of action in their amended complaint. Pursuant to a further stipulation dated August 4, 2008, the tenants agreed to discontinue the first Supreme Court action with prejudice.
On or about June 11, 2008, STP served a purported "Notice of Proposed Change in Use and Termination of Tenancy" upon the respondents, allegedly pursuant to RPL §233(b)(6), advising them that STP proposed a change in the use of the trailer park and that the tenants' month-to-month tenancies were terminated as of December 31, 2008. In October 2008, STP filed non-payment summary proceedings in this Court. These proceedings were ultimately concluded by either settlement through payment in July 2009, or by stipulation in September 2009, pursuant to which the tenants paid approximately 19 months rent of the 23 months' rent claimed due.
Three tenants (Bonner, Rappaport, and Caramico, the respondents from the third group of proceedings), were not provided with the six month change of use notices at that time, inasmuch as a federal bankruptcy stay was in effect as to these three tenants.
Drasser, Funk, Johnson, McCauley (a/k/a Garrett), Poemmerl (a/k/a/ Mitchell), Portnoy, Snyder and St. Clair
All remaining tenants in these proceedings except those from the third group of proceedings, who were not involved in these summary proceedings and as such were not parties to settlement or stipulations.
In September 2009, STP served change of use notices upon the tenants, indicating that the respondents' tenancies would be terminated "not earlier than March 31, 2010." On January 26, 2010, STP served notices of termination on all of the respondents advising them that each of their tenancies would terminate on March 31, 2010.
Except for respondents Bonner, Caramico and Rappaport, the respondents from the third group of proceedings. On March 9, 2010, the bankruptcy stay was lifted, and these tenants were served six month change of use notices on March 17, 2010, indicating a termination date of September 30, 2010.
In October 2009, a group of tenants (including all respondents in the first two groups of proceedings except for Mitchell) commenced an action in the Supreme Court, Nassau County, entitled Drasser v. STP Associates, LLP, index no. 09/15465 (the "second Supreme Court action"). The plaintiffs, in their Amended Complaint, set forth six causes of action as follows: (1) seeking a declaration that the plaintiffs are in good standing and entitled to a written lease for a term of at least 12 months on or before October 1, 2009, with certain terms and conditions, including provisions for rent and other charges, consistent with all rules and regulations promulgated by the manufactured park owner prior to the date of the offer, with rent charges identical to the rents currently paid by the tenants; (2) seeking a declaration that the September 2009 Change of Use notices are null, void, and of no effect; (3) declaring that the August 4, 2008 stipulation, to the extent that it discontinued with prejudice the first Supreme Court action, is null, void, and of no effect; (4) permanently enjoining STP from serving any further notices pursuant to RPL §233, without leave of the court, on any of the tenant-plaintiffs or until such time as the Court may determine that STP is in compliance with the requirements of RPL §233(b)(6)(I); and declaring that, pursuant to RPL §233(b)(6), STP may only move forward to evictions based on an actual change in use, not a proposed change in use; (5) seeking damages for STP's violation of the tenants' right to quiet enjoyment of their homes; and (6) seeking damages for harassment.
In an order dated December 10, 2010, the Supreme Court granted STP's cross motion for summary judgment and dismissed the complaint in its entirety (see Drasser v. STP Assoc., LLC, 2010 NY Slip Op 33484[U], 2010 NY Misc LEXIS 6157 [Sup Ct Nassau County 2010]). In February 2011 STP commenced the instant holdover proceedings against the respondents in the first two groups of proceedings. The respondents in the first group of proceedings interposed identical answers with affirmative defenses and one counterclaim. STP commenced the instant holdover proceedings against the respondents in the third group of proceedings in April 2011.
The respondents in the second group of proceedings have not filed an answer.
Analysis
Preliminary Issue: Respondents' Cross Motion for a Stayof the First and Second Group of Proceedings
The branch of the respondents' cross motion which seeks a stay of the proceedings with respect to both the first and second group of proceedings will be addressed first. The respondents seek a stay of the instant proceedings in light of their pending appeal from the order issued in the second Supreme Court action in the Appellate Division, Second Department. In making their argument in support of this branch of their motion, the respondents neglect to mention that they have made three previous applications for a stay of these proceedings in light of their appeal, two in the Appellate Division and one in this Court, all of which have been denied (see Exhibits "A", "B", and "C" to STP's Affirmation in Reply to Respondents' Opposition to Petitioner's Motions and in Opposition to Respondents' Cross-Motions; Order of the Appellate Division, Second Department dated February 16, 2011; Order of the Appellate Division, Second Department dated May 12, 2011; and transcript of proceedings in this Court dated March 3, 2011, respectively). The respondents have offered no change in circumstances since those determinations which would compel this Court to stray from these three prior determinations, including its own. Accordingly, the branch of the respondents' motion seeking a stay of the proceedings is denied.
First Group of Proceedings: STP's Motion
As stated above, in the first group of instant proceedings, STP moves for summary judgment dismissing the respondents' second, third, fourth, fifth, sixth, seventh and eleventh affirmative defenses on the grounds that they were barred by the doctrines of collateral estoppel, res judicata, and/or stare decisis.
General Applicability of Doctrines of Res Judicata and Collateral Estoppel with Respect to the Supreme Court Decisions
"The doctrine of res judicata, or claim preclusion, provides that as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Matter of Field Home-Holy Comforter v. DeBuono, 238 AD2d 589, 591 [2d Dept 1997], quoting Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481 [1979]). For the purposes of determining whether a second claim is barred by res judicata, the two causes of action are the same if "a different judgment in the second [action] would destroy or impair rights or interests established by the first action" (Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 NY 304, 307 [1929]).
"Collateral estoppel, a corollary to the doctrine of res judicata, precludes a party from re-litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same'" (CRK Contracting of Suffolk Inc. v. Jeffrey M. Brown & Assocs., 260 AD2d 530, 531 [2d Dept 1999], citing Ryan v New York Tel. Co., 62 NY2d 494 [1984]). "The two basic requirements of the doctrine are that the party seeking to invoke collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination" (CRK Contracting of Suffolk Inc. v. Jeffrey M. Brown & Assocs., supra).
"A party invoking either the doctrine of res judicata or collateral estoppel must show that the critical issue in the instant action was necessarily decided in the prior action and that the party against whom estoppel is sought has been afforded a full and fair opportunity to contest that issue" (New York Site Dev. Corp. v. New York State Dep't of Envtl. Conservation, 217 AD2d 699, 700 [2d Dept 1995]).
Initially, it is noted that of the ten respondents involved in the first group of proceedings, Fromia and Garrett, were not involved in the first Supreme Court action, and Garrett was not involved in the second Supreme Court action. Thus, to any extent that the doctrines of res judicata and/or collateral estoppel may apply to the issues raised by the respondents' affirmative defenses in the instant proceedings, such doctrines are not applicable to the issues as raised specifically by respondent, Garrett, inasmuch as she was not a party to either the first or second Supreme Court actions. Likewise, to the extent that the instant proceeding raises issues resolved in the first Supreme Court action only, Fromia's claims are not barred by the doctrines of res judicata or collateral estoppel. Moreover, to the extent that STP contends that the doctrine of stare decisis applies to preclude Garrett from raising these arguments in this proceeding, this Court does not find such argument to be compelling. However, while the Court will not deny Ms. Garrett her day in Court and opportunity to litigate the issues, it will, at the same time, afford certain deference to the Supreme Court with respect to its resolution of the issues.
However, the issues raised in the instant proceedings were necessarily raised in the second Supreme Court action, in which Fromia participated. Therefore, the fact that Fromia did not participate in the first Supreme Court action has no bearing upon the preclusion of the issues raised in the instant proceedings as applied to Fromia.
Before the Court delves into the specific affirmative defenses, it will address the argument raised by the respondents in opposition to STP's motion in which they contend that the Supreme Court, in both the first and second Supreme Court actions, effectively granted the respondent leave to re-litigate the issues addressed and decided by the Supreme Court when it stated in both decisions that the respondents shall "be permitted to interpose an answer and any affirmative defenses they may have in the District Court of Nassau County" (emphasis supplied). This cannot be construed as permission from the Supreme Court to interpose any and all affirmative defenses to be interposed. There are some obvious constraints in place; for example, the Supreme Court did not intend to permit the respondents to interpose entirely frivolous affirmative defenses. Rather, the Supreme Court was merely emphasizing that the respondents would be permitted to have their day in this Court with respect to any affirmative defenses that are properly raised in this Court. This Court will not construe such statement as granting an unmitigated and absolute right to the respondents to have this Court entertain issues which have previously been raised and decided against the respondents in the Supreme Court actions. Accordingly, this Court does not find the respondents' argument to be compelling.
Similarly, the Court finds the respondents' related argument that STP should be judicially estopped from raising the issues of res judicata and collateral estoppel to be without merit. The respondents suggest that STP's argument before the Appellate Division in opposition to the respondents' applications for a stay of the proceedings that the respondents would have the opportunity to raise the affirmative defenses they may have in these District Court proceedings is somehow an inconsistent position with its current position. However, this Court does not see any inconsistent position, and as such, the respondents' argument is without merit.
To the extent that the respondents argue that the order dated December 10, 2010 in the second Supreme Court action was not a decision on the merits and thus not subject to the doctrines of res judicata and collateral estoppel, this Court finds this argument to be without merit. The respondents suggest that the Supreme Court's dismissal of the complaint was incorrect, since the respondents sought a declaratory judgment therein. It is well settled that in a declaratory judgment action, the Court is obligated to declare the rights of the parties rather than simply dismissing the complaint (see 200 Genesee St. Corp. v. City of Utica, 6 NY3d 761 [2006]). However, it is disingenuous for the respondents to argue that the Supreme Court did not declare the rights of the parties in addition to dismissing the respondents' complaint. In the third to last paragraph of its decision, immediately prior to dismissing the complaint, the Supreme Court made a definitive declaration of the rights of the parties:
It is the determination of this court that plaintiffs are not entitled to a further lease offering; defendant's Change of Use Notices comply with Real Property Law §233 as a predicate to commencing a holdover proceeding; the stipulation of discontinuance entered into between counsel for thee parties on August 4, 2008, discontinuing the prior action is valid and enforceable; plaintiffs are not entitled to a permanent injunction enjoining defendant from serving any further notices without leave of court; defendant has not breached the warranty of quiet enjoyment nor harassed plaintiffs by service of notices and pleadings it was required to serve in order to protect its rights, pursuant to statute, including RPL §233 and RPAPL Article 7(Drasser v. STP Assoc., LLC, supra).
This was undoubtedly a declaration of the rights of the parties and a determination on the merits. The respondents' suggestion that this is somehow dicta because the Supreme Court dismissed the complaint and did not explicitly state that it was making a declaration of the rights of the parties is, at best, an argument of form over substance, and this Court does not find it, nor any of the respondents' related arguments that the Supreme Court's decision consisted virtually entirely of dicta, to be compelling.
Res Judicata and Collateral Estoppel as Applied to the Affirmative Defenses
Turning to the issue of the applicability of the doctrines of res judicata and collateral estoppel, the respondents' second affirmative defense reads as follows:
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Pursuant to Real Property Law §233(e), because Respondent was in good standing as of both October 1, 2009 and October 1, 2010, and because no Predicate Notice had been served pursuant to Real Property Law §233(b)(6), Respondent is more than a mere month to month tenant.
There are two elements of this affirmative defense: first, the respondents construe the District Court stipulations which deemed the tenants to be in "good standing" to be the equivalent to the "good standing" standard in RPL §233(e)(2) which would obligate STP to offer leases to the tenants on or before the first day of October in 2009 and 2010. Second, the respondents assert that STP did not properly serve a Change of Use notice pursuant to RPL §233(b)(6).
"Good Standing" Defense
These issues were raised by the tenants in the second Supreme Court action, specifically in their first cause of action, in which the tenants sought a declaration that they were in good standing and were entitled to a written lease on or before October 1, 2009, and in the second cause of action, in which they sought a declaration that the September 2009 Change of Use notices were null, void, and of no effect. In addressing these issues, the Supreme Court determined, in pertinent part, that "[w]hen the parties' counsel stipulated in District Court that the tenants would be in good standing' upon paying the rent arrears, it meant that as holdover tenants' they were current in their rent payment and could not be evicted for non-payment. The stipulation in District Court in no way changed or modified this Court's prior determination that plaintiffs, by refusing to accept the lease offer, continue to remain holdover tenants" (Drasser v. STP Assoc., LLC, supra). Under the circumstances, the Court finds that with respect to those tenants who were parties to the second Supreme Court action, the portion of the second affirmative defense which relates to a contention that the tenants were in good standing is barred by the doctrines of res judicata and collateral estoppel.
With respect to the "good standing" portion of the second affirmative defense as applied to respondent, Garrett, such defense is not barred by the doctrines of res judicata and/or collateral estoppel and accordingly will be addressed here. Pursuant to RPL §233(e)(2)(i)(a), the manufactured park owner or operator is required to offer a written lease for a minimum of one year on or before the first of October of each year to any manufactured home owner in good standing who is not currently a party to a written lease. The tenants' argument is that pursuant to the District Court stipulation, they have been deemed in good standing. With respect to respondent, Garrett, this Court has considered the arguments as set forth by the parties and is compelled to agree with the conclusion reached by the Supreme Court. RPL §233(e)(2)(i) requires the manufactured park owner or operator to provide a written offer to lease for a twelve month term to any "manufactured home owner then in good standing who is not currently a party to a written lease ..." by October 1 of each calendar year. This Court finds that the stipulation deeming Garrett to be in good standing (it appears that Garrett met the other requirements of the stipulation with respect to payment; if she had not, the "good standing" defense would be inapplicable to her, inasmuch as she would not have been deemed to be in good standing pursuant to the stipulation) was merely a reference to her standing within the context of the eviction proceeding, i.e., upon making payment Garrett could no longer be the subject of an eviction proceeding based upon failure to pay rent. Garrett remained, however, a tenant that had refused to accept an offer for a written lease after the expiration of the term of her lease, and was accordingly in holdover, month-to-month status, continuing in possession of the premises without the permission of STP. RPL §233(b)(1) permits a manufactured park owner to commence eviction proceedings in the event of such circumstances described above with respect to Garrett. In any event, it is also noted that there is an exception to the annual lease offering requirement contained in RPL §233(e)(2), even to those tenants who are in good standing. If the manufactured park owner has provided a change of use notice, which is the case here, it is not required to offer a new lease.
Indeed, a review of the stipulation is consistent with such interpretation. The stipulation specifically set forth consequences of failure to pay by the tenants (in which case STP "will be entitled to a money judgment ... and the immediate entry of a judgment of possession and the issue of a warrant of eviction without a stay"), and, in contrast, the consequences of payment: "Upon tender of valid payment in full, tenant is in good standing and no judgment shall enter nor warrant issue ...". Such consequences all are in the context of a nonpayment proceeding. As such, the Court interprets the status of "good standing" in such context as defined as a tenant who is no longer in rent arrears against whom a nonpayment proceeding cannot lie.
Alleged Defective Service of the Change of Use Notice
Turning to the second aspect of the second affirmative defense, that "no Predicate Notice had been served pursuant to Real Property Law §233(b)(6)", such defense can be broken down into two components, each dealing with various aspects of the aforementioned statutory requirement. Real Property Law §233(b) sets forth certain scenarios under which a manufactured home park owner or operator may evict a manufactured home tenant. Subdivision (6)(i) of that section, provides, in pertinent part:
The manufactured home park owner or operator proposes a change in the use of the land comprising the manufactured home park, or a portion thereof, on which the manufactured home is located, from manufactured home lot rentals to some other use, provided the manufactured home owner is given written notice of the proposed change of use and the manufactured home owner's need to secure other accommodations. Whenever a manufactured home park owner or operator gives a notice of proposed change of use to any manufactured home owner, the manufactured home park owner shall, at the same time, give notice of the proposed change of use to all other manufactured home owners in the manufactured home park who will be required to secure other accommodations as a result of such change in use. Eviction proceedings based on a change in use shall not be commenced prior to six months from the service of notice of proposed change in use or the end of the lease term, whichever is later. Such notice shall be served in the manner prescribed in section seven hundred thirty-five of the real property actions and proceedings law or by certified mail, return receipt requested.
It appears that the tenants' arguments regarding STP's lack of compliance with RPL §233(b)(6) are: first, that STP failed to identify in its change of use notice the specifics as to what the change in use might be; and second, that STP did not serve all of the tenants with the change of use notice at the same time. With respect to the substance of the change of use notice, in its order dated December 10, 2010, the Supreme Court discussed at great length the legislative history of RPL §233(b)(6) and whether such notice sufficiently complied with the statute, ultimately concluding that the notice complied with the statute and its legislative intent. With respect to the tenants' argument that the change of use notice was not served in accordance with RPL §233(b)(6) since not all the tenants were served at the same time, this was also an issue raised and addressed in the second Supreme Court action. There, as they do here, the tenants argued that since respondents Bonner, Caramico and Rappaport were not served with the September 15, 2009 change of use notice, STP failed to comply with the requirement of RPL §233(b)(6) that the tenants be served at the same time. STP had argued that it was precluded from serving the change of use notice upon these respondents because of the automatic stay in place pursuant to the bankruptcy proceedings. These respondents were served with the change of use notice when the stay was lifted. In its order dated December 10, 2010 the Supreme Court addressed this issue, stating that "[t]he September 15, 2009, notice satisfied all the notice requirements of RPL §233(b)(6)(i), as did the notices served on the tenants previously in bankruptcy." As such, this Court finds that the tenants' arguments regarding the sufficiency of the substance and service of change of use notice are barred by the doctrines of collateral estoppel and/or res judicata.
Turning to these arguments as applied to respondent Garrett, this Court agrees with the Supreme Court. The purpose behind requiring the change of use notice is to protect the tenants by providing them with at least six months' notice before eviction proceedings can be commenced when the owner contemplates a change in use. For purposes of the sufficiency of the notice, what that actual change in use might be is immaterial to the tenants. The fact remains that, for sufficiency purposes, the statute simply does not require the owner to provide information to the tenants regarding the proposed change of use, other than to provide written notice that there is a proposed change of use and that as a result, the tenants will be required to secure other accommodations.
With respect to the argument that STP's service of the change of use notice failed to comply with RPL §233(b)(6) since it did not serve all of the tenants at the same time, the Court does not find this contention to be compelling in light of the circumstances. As stated above, STP did not serve respondents Bonner, Caramico and Rappaport with the change of use notice in September 2009, inasmuch as they were in the midst of bankruptcy proceedings and, arguably, were protected from service of such notice by the automatic stay (see 11 USC §362). It is noted that the tenants' counsel has used these bankruptcy filings as a sword and a shield throughout the tortured history of this litigation. Counsel has argued both that the stay is applicable (in arguing in the bankruptcy proceedings that the stay should not be lifted for the purpose of permitting STP to serve the bankruptcy debtors with the change of use notice), and inapplicable (in arguing, as here, that STP's change of use notice was not properly served since it did not serve the bankruptcy debtors with the September 2009 change of use notice). Upon the Bankruptcy Court's granting of STP's application to lift the stay, STP served Bonner, Caramico and Rappaport with the change of use notice in March 2010, giving all tenants the requisite six months' notice.
This Court is well aware that a notice of termination of a leasehold served while a bankruptcy proceeding is pending violates the automatic stay and is void (see e.g., 48th St. Steakhouse, Inc. v. Rockefeller Group, Inc., 835 F2d 427, 431 (2d Cir. 1987). The Court also recognizes that a change of use notice pursuant to RPL §233 is not a notice of termination. However, such notices do have obvious similarities and the Court can appreciate STP's approach in respecting the automatic stay and not serving the bankruptcy debtors with the change of use notice while a stay is in place. While the Bankruptcy Court, at a hearing dated February 3, 2010 in connection with STP's application to lift the stay, appeared to suggest that service of the change of use notice would not have been subject to the stay, the Bankruptcy Court nevertheless chose to take the step of granting STP's application. This Court will not itself delve into the issue of whether a change of use notice pursuant to RPL §233(b)(6) should be subject to an automatic bankruptcy stay. However, the Court stresses that a bankruptcy filing by three manufactured home owners (or even one such owner) should not be able to be utilized to stave off service of change of use notices for all of the other manufactured home owners. In light of the apparent confusion as to the applicability of the stay, STP's efforts to comply with the stay and to have the stay lifted, the complete lack of prejudice to any of the tenants due to the later service of the change of use notice upon the bankruptcy debtors, the tenants' attempt to use the bankruptcy filings as both a sword and a shield, and the Supreme Court's findings as to this issue, the Court finds that STP's service of the change of use notice was in sufficient compliance with RPL §233. Accordingly, the second affirmative defense is dismissed as to all tenants.
Although the bankruptcy debtor tenants were not served with the change of use notice in September 2009, it would not be unfathomable that they were aware of the notices served upon their neighbors, with whom they share the same counsel.
The respondents' third affirmative defense reads as follows:
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Pursuant to Real Property Law §233(e), Petitioner failed to offer Respondent a lease of a term of at least one year by October 1, 2010 and therefore may neither terminate Respondent's tenancy, nor seek a judgment of eviction and possession; and no warrant may issue.
This affirmative defense is a reiteration of the "good standing" defense that was addressed above and set forth implicitly in the tenants' second affirmative defense. As discussed above, this argument was fully addressed in the second Supreme Court action and, therefore, this defense is barred by the doctrines of res judicata and/or collateral estoppel as to those tenants who participated in the second Supreme Court action. With respect to respondent, Garrett, the merits of this defense have been discussed above and this Court has concluded that such defense is without merit as a matter of law.
Accordingly, for the reasons stated above, the third affirmative defense is dismissed as to all tenants.
The fourth, fifth, sixth, seventh, and eleventh affirmative defenses read as follows:
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction of this proceeding because the Purported Notice dated September 15, 2009 was improperly served in that not all homeowners in the Manufactured Home Park who would be required to secure other accommodations as a result of such alleged "proposed change in use" were served as required by Real Property Law §233(b)(6).
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction of this proceeding because the Purported Notice dated September 15, 2009 fails to set forth necessary facts required of a Predicate under Real Property Proceedings [sic] and Proceeding Law Article 7.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction of this proceeding because the Purported Notice dated September 15, 2009 contains no termination date and therefore is not definite and unequivocal, as required of a Predicate under Real Property Law §233 and Real Property Proceedings [sic] and Proceeding Law Article 7.
AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
The Court lacks subject matter jurisdiction of this proceeding because the Purported Notice dated September 15, 2009 fails to notify Respondent of the consequences for failure to vacate the premises, as required of a Predicate under Real Property §233 and Real Property Proceedings [sic] and Proceeding Law Article 7.
AND AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Petitioner cannot proceed to eviction under Real Property Law §233(b)(6) because eviction thereunder may not commence upon a mere "proposed change in use" but may only commence under an actual "change in use," and Petitioner has taken no concrete steps to change the use of the park where the premises are located.
The fourth affirmative defense relates to the issue of STP not serving all of the tenants with the September 15, 2009 change of use notice at the same time, inasmuch as three tenants were in the midst of bankruptcy proceedings. This issue has been addressed in the context of the discussion of the second affirmative defense above. For the same reasons as stated in such discussion, the fourth affirmative defense is dismissed.
The fifth, sixth, and seventh affirmative defenses all relate to the substance of the change of use notice. As discussed above, in the second Supreme Court action, the Supreme Court addressed the substance of the change of use notices and found such notices to be in compliance with RPL §233. Accordingly, with respect to those tenants who participated in the second Supreme Court action, these affirmative defenses are barred by the doctrines of res judicata and/or collateral estoppel.
With respect to respondent, Garrett, the fifth affirmative defense appears to reference the fact that the change of use notice fails to identify the new usage of the premises. This argument has been addressed above with respect to Garrett, and for such reasons, this affirmative defense is dismissed insofar as asserted by her. The sixth and seventh affirmative defenses appear to treat the change of use notice as a notice of termination, the latter of which is subject to different requirements pursuant to RPAPL article 7. This Court has addressed all of the requirements for a change of use notice pursuant to RPL §233(b)(6) raised by the tenants. RPAPL does not impose any additional requirements upon the substance of a change of use notice. As stated above, the Supreme Court determined that the change of use notice was sufficient, and this Court agrees. Accordingly, the sixth and seventh affirmative defenses are dismissed insofar as asserted by Garrett.
Turning to the eleventh affirmative defense, the tenants appear to argue that an eviction proceeding cannot lie since there has been no actual change in use of the premises. To the extent that Garrett, and for that matter, all of the tenants, raise concerns regarding STP's good faith in sending such notice, the Court will permit the tenants to explore the issue of STP's true intentions with the property during these proceedings, inasmuch as this was not an issue decided in the prior actions. It is noted that "good faith" is not a prerequisite to a finding that the change of use notice itself satisfied the requirements of RPL §233(b)(6). However, if it is proven that STP's intention was to evict these tenants pursuant to RPL §233(b)(6) under a "theory" that it proposed to change the use of the property, while actually only intending to lease the property to mobile home owners other than the current tenants, STP's basis for evicting the tenants would be a sham, and will not lie. However, the Court does note that STP must merely have a "proposed" change in use. The Court is mindful that a developer's plans can change for any multitude of legitimate reasons. Demonstrating a lack of good faith, i.e., that STP had no intention of ever changing the use of the property, even if it did subsequently lease the property to other mobile home owners, or if it sold the property without implementing a change in use, would be an uphill battle at best for these tenants. Under the circumstances, the branch of STP's motion seeking dismissal of the eleventh affirmative defense is denied.
With respect to the branch of STP's motion which seeks an award of sanctions, the Court, in an exercise of its discretion, declines to make such an award.
Accordingly, STP's motion is granted to the extent that the second, third, fourth, fifth, sixth, and seventh affirmative defenses are dismissed. STP's motion is otherwise denied.
Second Group of Proceedings: STP's Motion
In a motion based upon the identical premise as its motion with respect to the first group of proceedings, STP moves in limine seeking to preclude the second group of respondents from offering certain evidence at trial. Inasmuch as the respondents in this second group of proceedings, unlike their counterparts in the first group of proceedings, have not filed answers, STP has been left to presume what their defenses at trial might be. In its motion, STP has anticipated that the second group of respondents will raise the same defenses as those raised by the first group of respondents in their answers, and seeks to preclude evidence which would support such defenses, on the grounds that such defenses are barred by the doctrines of res judicata and/or collateral estoppel.
A motion in limine "is a request that a court rule on an evidentiary issue prior to the time that a trial objection is typically interposed when the evidence is offered by a party during a trial" and it "may be made to admit, exclude, or limit evidence" (1-102 Bender's New York Evidence §102.05). In the instant matter, STP fails to identify any specific evidence that it seeks this Court to exclude. Instead, STP generically seeks to exclude "evidence from being offering relative to Respondents' Anticipated Defenses".
STP defines "Anticipated Defenses" as those defenses it expects the second group of respondents to raise at trial, i.e., those defenses contained in the second, third, fourth, fifth, sixth, seventh and eleventh affirmative defenses of the answers of the first group of respondents. This Court accepts and incorporates such definition into this decision.
Initially, it is noted that respondent, Mitchell, was a party to the first Supreme Court action, but not the second Supreme Court action. All of the other respondents in the second group of proceedings participated in both Supreme Court actions. Upon examination and comparison of both Supreme Court actions and the issues regarding which STP seeks preclusion, the Court finds that all of the issues raised in the Anticipated Defenses were raised in the second Supreme Court action but not the first. Accordingly, the doctrines of res judicata and collateral estoppel are inapplicable to Mitchell as to the issues raised in the Anticipated Defenses.
With respect to the second group of respondents other than Mitchell, for the reasons stated in connection with this Court's discussion of STP's motion relating to the first group of respondents, the Court finds that evidence relating to the Anticipated Defenses will be excluded at trial on the ground that issues related thereto are precluded by the doctrines of res judicata and/or collateral estoppel. With respect to Mitchell, in light of the Court's findings as a matter of law concerning respondent, Garrett, as to the evidence related to the Anticipated Defenses except for the eleventh affirmative defense, the Court will apply such rationale to Mitchell and thus conclude that any such evidence is excluded as a matter of law. With respect to evidence relating to the eleventh affirmative defense as to all respondents, such evidence will not be excluded at trial, inasmuch as the Court has determined that issues arising out of such affirmative defense are not barred by the doctrines of res judicata and/or collateral estoppel and can be properly raised at trial.
Since this Court has determined that the issues relating to the eleventh affirmative defense were not barred by the doctrines of res judicata and/or collateral estoppel, only evidence relating to the second, third, fourth, fifth, and sixth affirmative defenses will be excluded.
With respect to the "evidence" that this Court will exclude, the Court reiterates that since STP has not specifically identified any particular piece of evidence that it wishes to exclude, this Court can only exclude such evidence in a general descriptive manner, as it has in the immediately preceding and following paragraphs. Should the respondents seek to introduce evidence at trial that STP believes has been excluded by this Court's order, upon STP's challenge at trial, the respondents will be required to make an offer of proof demonstrating that such evidence is being introduced for a purpose other than attempting to establish the second, third, fourth, fifth, sixth, or seventh affirmative defenses.
In sum, STP's motion is granted to the extent that evidence solely relative to the second, third, fourth, fifth, sixth, or seventh affirmative defenses is excluded as to all respondents. Evidence relating to the eleventh affirmative defense is not excluded.
Respondents' Cross Motion
(Applicable to the First and Second Groups of Proceedings)
Respondents seek dismissal of the proceedings against respondents St. Clair and Walch upon the ground that the proceedings against these two respondents are, in fact, nonpayment proceedings rather than holdover proceedings, thus requiring a preceding demand for rent, which was not made in these proceedings. It cannot be disputed that a petitioner in a nonpayment proceeding against a manufactured home owner must serve such manufactured home owner with a written 30-day demand for the rent (see RPL §233[b][2]). However, despite the respondents' contentions, the petitions of which the respondents seek dismissal are, in fact, holdover proceedings, based upon such respondents remaining at the premises without STP's permission after the termination of the subject leases. Accordingly, dismissal is not appropriate under the circumstances.
Respondents also contend that all the petitions must be dismissed since the attorney verifications contained therein fail to comply with RPAPL §741 and CPLR §3021. Specifically, the respondents contend, and STP effectively and correctly concedes, that the petitions are defective because the attorney verifications contained in the petitions fail to set forth the reason why such verification is not being made by the petitioner. The respondents can and do cite case law in support of the proposition that a petition with this precise verification defect should be dismissed (see e.g. S.P.S.G., Inc. v. Collado, 113 Misc 2d 167 [Civ Ct NY 1982]). However, Courts also, in circumstances involving similar verification defects, have specifically either dismissed the petition with leave to amend the petition (see Lefrak v. Robinson, 115 Misc 2d 256 [Mt Vernon City Ct 1982]), or simply amended the petitions nunc pro tunc (see New York v. Brown, 119 Misc 2d 1054 [Civ Ct Kings County 1982]). In the instant matter, STP annexes to its opposition as Exhibit "J" a proposed amended verification which complies with RPAPL §741 and CPLR §3021 and seeks leave to amend the petitions to incorporate the proposed amended verification. In light of the lack of severity of the defect, the lack of prejudice to the respondents, and in the interest of judicial economy, the unopposed application for leave to amend the petitions to incorporate the amended verifications is granted, and STP's proposed amended petitions (incorporating the amended verifications) are deemed served upon the respondents and filed with the Court.
The Court notes that the respondents do not address this issue in their reply papers and thus did not comment upon STP's proposed amended verification or its application for leave to amend the petitions.
The respondents also cross-move for leave for discovery pursuant to CPLR §408. Specifically, the respondents request permission to depose STP manager/member, Larry Rush, in their attempt to secure information relating to their eleventh affirmative defense, i.e., whether STP had a good faith intention to change the use of the manufactured home park.
"In a summary proceeding in which a petitioner moves for disclosure under CPLR 408, the pertinent criteria for consideration include, inter alia: (1) whether the petitioner has asserted facts to establish a cause of action; (2) whether a need to determine information directly related to the cause of action has been demonstrated; (3) whether the requested disclosure is carefully tailored so as to clarify the disputed facts; (4) whether any prejudice will result; and (5) whether the court can fashion or condition its order to diminish or alleviate any resulting prejudice."
(Matter of Lonray, Inc. v. Newhouse, 229 AD2d 440, 440-41 [2d Dept 1996], citing e.g. New York Univ. v. Farkas, 121 Misc 2d 643 [Civ Ct NYC 1983]). The Court has discussed the merits of the respondents' eleventh affirmative defense earlier in this decision and such discussion will not be repeated here. Information regarding STP's true intentions with the property certainly would rest with its principal. Although the Court is mindful of the monetary impact any delay in the proceedings might have upon STP, in consideration of all of the above factors, the Court concludes that a deposition of Mr. Rush is appropriate under the circumstances. Accordingly, Mr. Rush is directed to appear for deposition on a date agreed upon by the parties no later than thirty days from the date of this decision. The subject matter of Mr. Rush's deposition will be strictly limited to STP's intentions regarding the land at the time of the commencement of these proceedings.
The Court has reviewed the respondents' various requests for sanctions and, in an exercise of discretion, the Court declines to make an award of sanctions.
Next, the respondents move to consolidate the twenty-three proceedings which comprise the first and second group of proceedings. "When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (CPLR §602[a]). "A motion to consolidate actions or for a joint trial pursuant to CPLR 602(a) rests in the sound discretion of the trial court. Absent a showing of prejudice to a substantial right by a party opposing the motion, consolidation should be granted where common questions of law or facts exist" (Mattia v. Food Emporium, Inc., 259 AD2d 527 [2d Dept 1999]).
Under the circumstances, the Court finds these proceedings to be appropriate for consolidation. Accordingly, these twenty-three proceedings are consolidated and shall proceed in the landlord-tenant part of the First District Court, Hempstead. Such consolidated proceeding shall bear the index number LT 706-11, and the title of the consolidated action shall be:
STP ASSOCIATES, LLC,
Petitioner,
-against
NELSON HESS,
Respondent.
Third Group of Proceedings
Initially, it is noted that the respondents of the third group of proceedings participated in the first Supreme Court action but not the second Supreme Court action. Therefore, with respect to the applicability of res judicata and collateral estoppel as a bar to the issues or claims they raise, they are in identical circumstances to respondent, Mitchell, in the second group of proceedings. In other words, the doctrines of res judicata and collateral estoppel are inapplicable to these respondents as to any of the issues raised in the Anticipated Defenses. In addressing these issues raised by these respondents, the Court will not repeat its discussion and will make reference to such issues as addressed in regard to respondent, Mitchell, of the second group of proceedings (which, in turn, made reference to the issues as addressed in regard to respondent, Garrett, who was not a party to either of the Supreme Court actions).
Respondents' Motion
The respondents' first substantive argument is that the proceedings must be dismissed since the change of use notices did not sufficiently specify what the proposed new use of the premises will be. For the reasons previously stated in this decision, this argument is without merit. To the extent that these respondents seek to challenge STP's good faith intent with regard to changing the use of the premises, as discussed earlier in this decision, the Court will permit the respondents to explore such issue at trial.
To the extent that the respondents argue that the change of use notice was invalid since it was not served at the same time upon all tenants, this argument is also without merit for the reasons stated above with respect to Mitchell.
The respondents seek dismissal upon the ground that the proceedings against them are, in fact, nonpayment proceedings rather than holdover proceedings, thus requiring a preceding demand for rent, which was not made in these proceedings. This precise argument was made by respondents, St. Clair and Walch, from the second group of proceedings. For the reasons stated above in connection with the discussion of those respondents' argument, this argument is without merit and dismissal is not appropriate under the circumstances.
The respondents also argue that the change of use notice was a nullity because it did not have a definite termination date. This is a sufficiency argument that was generally addressed and rejected in the discussion of the sufficiency of the change of use notice as served upon respondent, Mitchell. For purposes of clarity, the Court does not find there to be a requirement for a change of use notice to contain a definite termination date; it merely provides that the manufactured park owner cannot maintain an eviction proceeding until at least six months after service of the change of use notice (see RPL §233[b][6]). It appears that the respondents wish to have this Court hold a change of use notice to the same standards as it would a notice of termination. There is no basis upon which this Court should follow this logic.
The respondents seek summary judgment on their counterclaim for attorney's fees and costs. The Court perceives no basis upon which to grant this branch of the respondents' motion at this time. Accordingly, this branch of the respondents' motion is denied.
With respect to the respondents' branch of their motion which seeks leave pursuant to CPLR §408 to depose STP's principal, Larry Rush, this branch of their motion is granted for the same reasons as expressed in connection with the respondents' cross motion in the first and second groups of proceedings. Accordingly, as stated above, Mr. Rush is directed to appear for deposition on a date agreed upon by the parties no later than thirty days from the date of this decision. The subject matter of Mr. Rush's deposition will be strictly limited to STP's intentions regarding the land at the time of the commencement of these proceedings.
Finally, the respondents move for consolidation of the three proceedings in the third group of proceedings. Under the circumstances, the Court finds these proceedings to be appropriate for consolidation. Accordingly, these three proceedings are consolidated and shall proceed in the landlord-tenant part of the First District Court, 99 Main Street, Hempstead. Such consolidated proceeding shall bear the index number LT 706-11, and the title of the consolidated action shall be:
STP ASSOCIATES, LLC,
Petitioner,
-against
MARCY RAPPAPORT,
Respondent.
STP's Cross Motion
In its cross motion, STP seeks, among other things, summary judgment dismissing the second, third, fourth, fifth, sixth, seventh, eleventh, thirteenth, fifteenth, and sixteenth affirmative defenses contained in the respondents' answers, which are the same affirmative defenses set forth in the answers provided by the respondents in the first group of proceedings. With respect to the second, third, fourth, fifth, sixth, seventh and eleventh affirmative defenses, these defenses have all been discussed at length above in the context of the other proceedings. For the reasons stated above, the second, third, fourth, fifth, sixth and seventh affirmative defenses are dismissed.
Any references to the change of use notice in these respondents' affirmative defenses is, of course, to such notices served upon them in March 2010, not the change of use notice that was served upon the other respondents in September 2009. However, such change of use notices were all identical in form for the purposes of discussing the substance of any affirmative defenses relating to the change of use notices.
With respect to the thirteenth affirmative defense, in which the respondents assert that the petition fails to state facts required by Real Property Actions and Proceedings Law §741(4), STP presumes that the respondents' argument is that this defense challenges the change of use notice rather that the petitions upon which these proceedings have been commenced. This Court is not prepared to make such a leap at this time, and will not dismiss this defense at this time.
The fifteenth affirmative defense relates to the insufficiency of the verification of the petitions. STP has sought leave, as it has with respect to the other proceedings, to amend the petitions by substituting an amended verification which complies with RPAPL §741 and CPLR §3021. For the reasons stated above in connection with this Court's discussion of STP's identical application in the other proceedings, this branch of STP's cross motion is granted, and STP's proposed amended petitions (incorporating the amended verifications) are deemed served upon the respondents and filed with the Court.
With respect to the respondents' sixteenth affirmative defense, such defense relates to the respondents' claim that STP failed to serve them with a rent demand. For the reasons stated above in connection with the branch of the respondents' motion addressing this issue, this defense is without merit.
STP also seeks an order striking respondent, Rappaport's jury demand. Since the respondent has pleaded equitable defenses, the right to a jury trial has been waived (see Seneca v. Novaro, 80 AD2d 909 [2d Dept 1981]; Compact Electra Corp. v. Connell, 46 AD2d 649 [2d Dept 1974]). Accordingly, Rappaport's jury demand is stricken.
Accordingly, and in sum, STP's cross motion is granted to the extent that the second, third, fourth, fifth, sixth, and fifteenth affirmative defenses are dismissed; STP's proposed amended petitions (incorporating the amended verifications) are deemed served upon the respondents and filed with the Court; and Rappaport's demand for a jury trial is stricken. STP's cross motion is otherwise denied.
Conclusion
In conclusion, with respect to STP's motion in the first group of proceedings, such motion is granted to the extent that the respondents' second, third, fourth, fifth, sixth, and seventh affirmative defenses are dismissed. That motion is otherwise denied.
With respect to STP's motion in the second group of proceedings, such motion is granted to the extent that evidence solely relative to the defenses set forth in the first group of respondents' second, third, fourth, fifth, sixth, and seventh affirmative defenses is to be excluded at trial. That motion is otherwise denied.
In connection with the respondents from the first and second group of proceedings, the branches of their collective cross motion for a stay, for sanctions, and for summary judgment dismissing the petitions are all denied. Their cross motion is granted only to the extent that the proceedings are consolidated as indicated in this decision, and that Larry Rush, principal of STP, is directed to appear for deposition on a date agreed upon by the parties no later than thirty days from the date of this decision, with the parameters of such deposition as set forth in this decision.
In addition, STP's application in the first and second groups of proceedings to amend the petitions is granted, and their proposed amended petitions (incorporating the amended verifications) are deemed served upon the respondents and filed with the Court.
With respect to the third group of proceedings, those branches of the respondents' motion for summary judgment dismissing the petitions, and for summary judgment on their counterclaim(s) are denied. The branches of the motions for consolidation of the proceedings and for an order directing that Mr. Rush appear for deposition are granted as indicated in this decision. STP's cross motion is granted to the extent that the second, third, fourth, fifth, sixth, and fifteenth affirmative defenses are dismissed; STP's proposed amended petitions (incorporating the amended verifications) are deemed served upon the respondents and filed with the court; and Rappaport's demand for a jury trial is stricken.
All matters referred to in this decision are set down for a status conference on February 7, 2012, at 9:30 a.m.
The foregoing constitutes the decision and order of the Court.
So Ordered:
Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:December 15, 2011
1. Involving the following ten respondents (identified by last name and file number): Drasser (LT 700-11); Dupre (LT 701-11); Ebersberger (LT 702-11); Fromia (LT 703-11); Funk (LT 704-11); Garrett (LT 705-11); Hess (LT 706-11); Johnson (LT 707-11); Karsch (LT 708-11); Kessler (LT 709-11).