170 E. 92nd St. Owners Corp. v Graham-Jones

[*1] 170 E. 92nd St. Owners Corp. v Graham-Jones 2009 NY Slip Op 51420(U) [24 Misc 3d 1211(A)] Decided on July 2, 2009 Civil Court Of The City Of New York, New York County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 7, 2009; it will not be published in the printed Official Reports.

Decided on July 2, 2009
Civil Court of the City of New York, New York County

170 East 92nd Street Owners Corp., Petitioner,

against

Jean Graham-Jones BRIAN GRAHAM-JONES, Respondents.



L & T 101403/06



Thomas S. Fleishell, & Associates, P.C.

By: Thomas S. Fleishell, Esq.

Attorneys for Petitioner

561 Seventh Avenue, 19th Floor

New York, NY 10018

(212) 972-1355

Lee M. Nigen & Associates, P.C.

By: Lee M. Nigen, Esq.

Attorney for Respondents-Tenants

3006 Avenue M, Suite 1D

Brooklyn, New York 10018

(212) 972-1355

Sabrina B. Kraus, J.

BACKGROUND

This summary nonpayment proceeding was commenced by 170 EAST 92ND

STREET OWNERS CORP. (Petitioner) and seeks to recover possession of

Apartment 4C-D at 170 E. 92ND STREET, NEW YORK, NEW YORK, 10001

(Subject Premises) from the proprietary lessees, JEAN GRAHAM-JONES (JGJ) and BRIAN GRAHAM-JONES (BGJ) ( collectively "Respondents") based on their failure to pay rent and additional rent due under their proprietary lease. Respondents asserted defenses and counterclaims which all relate to a single leak in the premises on February 16, 2005 and allegations that the leak resulted in a mold condition in the Subject Premises.

PROCEDURAL HISTORY

The Notice of Petition and Petition issued on November 21, 2006, and sought maintenance arrears in the amount of $5242.00, and legal fees in the amount of $750.00. BGJ filed a pro se answer on December 4, 2006, alleging improper service of the petition, breach of warranty of habitability, and general denial. The proceeding was originally returnable on December 12, 2006, and was adjourned to January 16, 2007, for Respondents to seek counsel.

On or about December 26, 2006, Respondents appeared by counsel, and moved for dismissal based on improper service, Petitioner submitted no opposition but Respondents' motion was denied by the Court on January 19, 2007, and the proceeding restored to the calendar February 15, 2007.

Although there had already been 3 HPD inspections for the conditions alleged, on or about February 6, 2007, Respondents moved for an order directing a fourth inspection of the Subject Premises by HPD, and setting the matter down for an abatement hearing. That motion was withdrawn per stipulation dated February 15, 2007, which provided for an inspection of the Subject Premises, deemed Respondents' amended answer served, but withdrew the 3rd, 4th, 5th, 6th, 9th, 10th and 12th defenses asserted in the amended answer, and adjourned the proceeding to March 28, 2007 for trial.

The inspection took place on March 1, 2007, and resulted in no reported violations being issued for conditions related to moisture and mold.

On March 28, 2007, the proceeding was transferred to Part G for trial, and was settled [*2]pursuant to a stipulation (March 2007 Stipulation). The March 2007 Stipulation provided that conditioned upon Respondents' prompt payment of $9888.60 in arrears, as well as timely payment of maintenance from April 2007 through the date of a final determination in a related Supreme Court Action, Petitioner withdrew claims for late charges, repair charges, and attorneys' fees, and Respondent withdrew defenses and counterclaims without prejudice to the assertion of those claims in the Supreme Court Action.

The March 2007 Stipulation further provided that if Respondents defaulted on payment, or if the Supreme Court Action was discontinued, dismissed or abandoned, Petitioner could restore this proceeding and seek entry of judgment for all unpaid maintenance, late charges, repair charges and attorneys' fees incurred through said date, and Respondent would be permitted to pursue its counterclaims. Finally, the stipulation provided for some minor repairs and access dates.

In March 2008, Petitioner moved to restore this proceeding based on Respondents' default in paying ongoing maintenance. That motion was settled pursuant to a stipulation (March 2008 Stipulation), wherein Respondents acknowledged owing $10, 915.26, for outstanding maintenance, and agreed to pay same, plus an assessment of $238.60 within one week. The stipulation further provided that late and legal fees were severed for a plenary proceeding, and that all other terms of the March 2007 Stipulation remained in effect.

On or about September 17, 2008, the Supreme Court granted Petitioner's motion for summary judgement and dismissed the complaint. Based on said dismissal, Petitioner moved to restore this proceeding to the court's calendar in October 2008. The Court issued a written order (November 2008 Restoration Order) granting Petitioner's motion to the extent of restoring the proceeding to the court's calendar for a determination of remaining claims.

On February 19, 2009, the proceeding was transferred to Part S and the trial commenced. The trial continued on February 20, 2009 and February 25, 2009 and concluded on March 2, 2009. Both sides were given an opportunity to submit post trial memorandum, and on May 1, 2009 the matter was marked submitted and the Court reserved decision.

RELATED LITIGATION

HP Proceeding 6490/05 (December 2005 through September 2006)

On or about December 2005, Respondents initiated an HP proceeding against Petitioner seeking an order directing Petitioner to effectuate mold remediation and repairs in the Subject Premises (1st HP Proceeding). A Court ordered inspection took place on January 21, 2006. The inspection resulted in no violations for mold, but did find one class A and four class B violations to exist in the kitchen for painting and plaster, broken ceramic tile floor, defective wood floors and a light switch.

On January 17, 2006, the parties entered into a stipulation which provided that Respondents would allow Petitioner access to the Subject Premises on January 23, 2006, and that Petitioner would attempt to have a "third party" inspect the Subject Premises at that time. Respondents did provide access on January 23, 2006,and Petitioner has its mold expert examine the Subject Premises on that date.

On February 21, 2006, the parties entered into a stipulation of settlement (Exhibit 13). The stipulation provided that Petitioner would correct the violations, and that Respondents would provide Petitioner with written notice of access dates within two weeks. Access was to be [*3]reasonable, on consecutive days, if possible, and during normal business hours. Petitioner reserved all of its rights under the proprietary lease, and both sides retained the right to restore the proceeding in the event of default.

On or about May 2006, Petitioner moved for an order holding Respondents in contempt, and relieving Petitioner of the requirement to make the repairs. The motion was granted to the extent of setting the matters raised down for a hearing, which took place on May 31, June 20, and July 13, of 2006. After the hearing, the Court concluded that Respondents had denied access on March 23, 2006 and April 5, 2006, but did not hold Respondents in contempt. The Court set new access dates for August 28-30, 2006.

On or about September 8, 2006, the parties entered into a stipulation to restore the proceeding to the calendar and agreeing to the following facts: Petitioner appeared at the Subject Premises on August 28, 2006 ready to commence work to correct the violations, but Respondents wished to videotape the work being done, and had erected a video camera for that purpose; and Petitioner's contractor refused to work while being videotaped; and Respondents refused to allow the work to be performed absent the video tape; and Pursuant to a conference call with the Court on August 29, 2006, the proceeding would be restored to the Court's calendar on September 21, 2006, for resolution of remaining issues.

On September 21, 2006, the parties entered into a stipulation setting new access dates for the correction of the violations issued in the 1st HP Proceeding, as well as those under a new proceeding commenced by Respondents under Index No. 6258/06 (3rd HP Proceeding). Access was agreed to be for October 4 through 6, 2006 and Petitioner's time to correct the violations was extended. The stipulation did not address the issue of videotaping the repairs.HP proceeding Index Number 6177/06 (May 2006-June 2006)

On or about May 12, 2006, Respondents commenced a second HP proceeding (2nd HP Proceeding). The May 25, 2006 inspection resulted in one class B violation being issued for painting and plastering (Exhibit 16). On July 19, 2006 the proceeding was withdrawn without prejudice.

HP proceeding Index Number 6258/06 (August 2006 through May 2007)

Incredibly, on or about August 2, 2006, over two weeks after withdrawing the 2nd HP Proceeding, Respondents commenced the 3rd HP Proceeding, this time pro se, alleging the existence of emergency conditions, but really based on the same conditions alleged to have occurred as a result of the Februray 16, 2005 leak (Exhibit 17). The August 14, 2006 inspection for a third consecutive time resulted in no reported violations for mold. Two violations were placed in the kitchen for paint and plaster and moisture penetration in the ceiling of the kitchen (Exhibit aa).

Petitioner moved for dismissal on the basis that there was a prior action pending. Inexplicably on September 21, 2006, the parties entered a stipulation providing that the motion was denied, and the proceeding was set down for trial on October 17, 2006. The scheduled trial was adjourned on November 28, 2006, and January 29, March 20, and April 25, of 2007.

On April 25, 2007, Petitioner moved for dismissal based on the fact that all violations had been corrected. The motion was adjourned to May 16, 2007 for opposition. Respondents never submitted opposition papers, and the Court dismissed the proceeding on May 16, 2007.

Civil Court Action Index No. 9286/06 (February 2006 to Present)

On or about February 14, 2006, Respondents commenced a civil suit against Petitioner and its agents for breach of contract. Respondents are represented by the same counsel in that [*4]action, but Petitioner has different counsel. The action seeks money damages as a result of personal injury and property damage alleged to have arisen out of the leak that took place in the Subject Premises on or about February 16, 2005. Upon information and belief that action is still pending.

Supreme Court Action Index No. 103156/07 (March 2007 through September 2008)

On or about March 2007, Respondents commenced a Supreme Court Action against Petitioner and its agents seeking five million dollars in damages. As with all of the related litigation discussed, the action was based on the incident the February 16, 2005 leak . Seven causes of action were asserted by Respondents (Exhibit D).

The first cause of action alleged that the leak resulted in severe water damage and electrical wiring problems in the Subject Premises, that Respondents reported the leak to Petitioner, and that Petitioner failed to respond in a timely manner forcing Respondents to live in dangerous conditions, the most egregious of which was alleged to be mold and mildew.

The second cause of action was for personal injury as a result of the mold alleged. The third cause of action alleged constructive eviction and asserted that Respondents had been deprived of the "full use and enjoyment of their apartment" due to the leak, mold, and lights shorting out . The fourth cause of action alleged actual eviction from the premises for two nights in August 2005.

The fifth cause of action alleged that Petitioner had breached provisions of the HMC and MDL by allowing hazardous conditions to exist in the Subject Premises. The sixth cause of action alleged that Petitioner had violated the Warranty of Habitability, RPL 235(b), and the proprietary lease by failing to timely correct the conditions alleged to have existed. The seventh cause of action asserted negligence and sought damages for physical and emotional distress.

Respondents were represented by the same counsel as in this proceeding, but Petitioner was represented by different counsel. Petitioners filed an answer on or about April 23, 2007 (Exhibit Y1). The answer asserted six affirmative defenses but no counterclaims.

On or about March 2007, Respondents moved by Order to Show Cause for an order consolidating the Supreme Court Action with this summary proceeding. On April 26, 2007, the motion was denied per written order, because the moving papers failed to identify the name of the case, the index number and common questions of law and fact of the case sought to be consolidated.

On or about May 27, 2008, Petitioner moved for summary judgment and sought an order dismissing the complaint, or alternatively granting partial summary judgment or a Frye hearing on the grounds that Respondents could not establish causation between the alleged leak, and any mold and subsequent illness. The motion for summary judgment was granted on September 17, 2008 (Exhibit 11). The Court found that Respondents had only established a single leak from the apartment above, failed to establish negligence on the part of Petitioner, failed to establish that Petitioner had prior notice of a defect, failed to establish that any medical illness was a result of alleged conditions, and failed to establish property damage. Judgment was entered October 8, 2008 dismissing the complaint in its entirety and awarding Petitioner $485.00 for costs and disbursements.

On or about November 2008, Respondents moved for re-argument and renewal, the motion was denied on February 4, 2009.

FINDINGS OF FACT [*5]

Respondents are the owners of 596 shares of Petitioner, and proprietary lessees of the Subject Premises, pursuant to a proprietary lease dated September 10, 2004. On February 16, 2005, a leak occurred in the Subject Premises, as a result of a cracked toilet in the apartment 5D at the Subject Building. The leak caused damage in all apartments, in the D line, below apartment 5D, including the Subject Premises. Respondents notified Petitioner and its agents of the condition the same day. While the leak caused damage requiring repairs in all D line apartments, only the issues in the Subject Premises resulted in litigation.

Within days, by February 20, 2005, Petitioner had arranged for MAC Painting Systems to go into the Subject Premises and repair damages (Exhibit 9). BGJ testified that he had read up on mold situations and disagreed with Petitioner's contractors plan to cut out and replace the damaged sheetrock. Respondents refused to allow MAC Painting to cut out and replace the sheetrock, because BGJ believed that since the leak occurred over seventy-two hours earlier, the Subject Premises would be contaminated if he allowed the repairs to be done [FN1].

On or about March 19, 2005 Petitioner's insurance company hired Donohue Environmental to go to the Subject Premises and perform a tape test.

On or about March 29, 2005, Petitioner sent Mold Terminators, a mold remediation company, to inspect the Subject Premises, and perform a tape test on behalf of Petitioner. The test conducted resulted in a report prepared by EMSL Analytical Inc., a copy was sent to Respondents on September 6, 2005 (Exhibit dd). The test found acceptable and low levels of a variety of species of mold in the Subject Premises.

On April 21, 2005 Petitioner sent Respondents a contract and scope of work for Mold Terminators. Further negotiations took place between the parties, and on August 11, 2005, Petitioner had obtained an estimate from Mold Terminators to do the work necessary to the Subject Premises as a result of the leak . The estimate provided for all necessary work, including electrical work and wiring and was for a total of $4,286.50 (Exhibit 10).

On August 15, 2005, Petitioner attempted to gain access to the Subject Premises to effectuate necessary plumbing repairs to the apartment above the Subject Premises (Exhibit 10). Zeffi Plumbing appeared prepared to do necessary plumbing work. Respondents did not wish to allow the plumbers to do the work, which required opening the ceiling in the kitchen of the Subject Premises, unless Mold Terminators was present to address possible mold contamination from opening the ceiling. Zeffi Plumbing left without doing any work at the Subject Premises.On August 26, 2005, Petitioner sent Respondents written notice that Mold Terminators had been retained to open the ceiling in the kitchen of the Subject Premises, so that plumbers could make repairs to the bathroom of apartment 5D, and that access would be required for that purpose on September 12, 2005. The notice provided that once the plumbing work was finished, the ceiling would be replaced, either the same day or the following day. The notice further provided that Mold Terminators would not work with Respondents regarding repairs necessary from the February 2005 leak, and advised that given their unreasonable restrictions on access and interference in how repairs would be effected, Respondents should conduct the repairs themselves, in accordance with coop rules, and Petitioner would reimburse Respondents in the amount of $4,286.50 for work done (Exhibit 10). Respondents did not accept the Petitioner's [*6]offer to arrange for the repairs themselves subject to reimbursement.

Zeffi Plumbers returned to the Subject Premises on September 12, 2005, and were permitted to do the plumbing repair for the apartment 5D.

On or about September 7, 2005, Petitioner sent Respondents a copy of the tape test results done by Mold Terminators in March 2005, showing that all levels of mold were within normal/acceptable ranges (Exhibit dd).

On or about October 5, 2005 a meeting took place in the Subject Premises to discuss issues between the parties. From September 2005 forward, Respondents took the position that they were unable to contract with anyone to have the necessary work done, because Petitioner had not provided them with the report from Donohue Environmental. Petitioner was not in possession of said report because it had never been released to them by their insurance company (Exhibit LL).

On January 23, 2006, Respondents provided Petitioner with access, and an inspection of the Subject Premises was conducted by Ambient Group, Inc. to assess the alleged mold condition. Ambient concluded that "fungal amplification is not actively occurring in the kitchen/dining room, which was the affected area, at this time (Exhibit 12)." The report further indicated that "(m)ost of the spores found in the indoor samples were similar to those found in the outdoor sample, and are commonly found in an indoor environment."

Access to correct violations from the1st HP Proceeding was scheduled for Thursday March 24, 2006 pursuant to a letter (Exhibit 18). March 24, 2006 fell on a Friday, Respondents realized the discrepancy on Wednesday evening, but did not contact Petitioner or its agents for clarification. Petitioner appeared prepared to work on Thursday March 23, 2006. BGJ refused to grant Petitioner access, because JGJ was ill. Both Respondents were at home that day and absent from their jobs. On March 23, 2006, Petitioner's counsel sent Respondents a letter setting April 5, 2006 as a new access date to correct the violations.

On April 5, 2006, Bill Macchio from MAC Painting Services attempted to gain access to the Subject Premises, and was denied access by Respondents (Exhibit 4). BGJ advised Mr. Macchio that he could not permit access because JGJ was still ill. BGJ further alleged that there was still mold in the Subject Premises, and that his attorneys would contact Petitioner regarding any future access dates.

On May 17, 2006 Respondents hired Robert I. Leighton to conduct an evaluation for the presence of mold in the kitchen and dining area of the Subject Premises. Robert Leighton testified as an expert in the field of mold at trial, and found that there were elevated levels of mold in the dining room and kitchen of the Subject Premises. The samples collected from behind the sheetrock walls and ceilings indicated only limited amounts of mold spores, and the moisture testing conducted by Mr. Leighton found that all surfaces were dry, and that the wood floors were not warped and showed no signs of water damage (Exhibit X). Mr. Leighton made no findings as to the source or cause of the mold, and made recommendations for remediation work.

On October 6 and 7, 2006, the work was completed by Petitioner's agent, William Macchio, and all outstanding violations of record were corrected.

On January 15, 2007, Mr. Leighton conducted a follow up test for mold in the Subject Premises. The January 2007 testing showed that levels of mold in the kitchen and dining area had remained the same as they were in May 2006, but found that elevated levels were now present in the bedroom and wall panels. Mr. Leighton found that extensive mold remediation was necessary, and advised that the recommendations from his original report should be [*7]followed.

WHAT ISSUES REMAIN TO BE DETERMINED AT TRIAL IN THISPROCEEDING GIVEN THE RELATED LITIGATION, AND PROCEDURAL HISTORY?

The November 2008 Restoration Order provided that the scope of the issues the parties could provide evidence was to include unpaid maintenance, late charges, repair charges, attorneys fees, warranty of habitability and repair. As will be further detailed below, the Court finds, after trial, that many of the issues on which the parties were permitted to present evidence had already been addressed by Judge York's Decision in the Supreme Court Action, and other judges of this court, in HP Proceedings selected by Respondents as the forum within which to litigate repair issues and orders to correct.

WARRANTY OF HABITABILITY



The Court finds that this claim is barred from being re-litigated in this proceeding based on the doctrine of res judictata. The doctrine of res judicata bar litigation of any claims that were actually litigated in another action, as well as any claims which could have been litigated but were not raised (Schuykill Fuel Corp. V. B. & C. Nieberg RealtyCorp.250 NY 304 [1929]). Once the claims are brought to a final conclusion, such as by dismissal of the complaint on a summary judgment motion, all other claims arising out of the same transaction are barred, regardless of whether the court actually addressed them in the other action (Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481[1979]). In this case, Respondents asserted in the Supreme Court Action a cause of action

specifically claiming breach of warranty of habitability under Real Property Law 235.[FN2] This claim was asseted by Respondents against Petitioners via the second counterclaim in this proceeding, and the sixth cause of action in the Supreme Court Action. Both claims are almost word for word identical, and seek the same relief, between the same parties, for the same incident, based on the same theory of recovery. The sixth cause of action was dismissed by Judge York in the Supreme Court Action, when he granted summary judgment to Petitioner and its agents.

Respondents themselves asserted the identity of parties and issues when they moved for a stay of this proceeding in the Supreme Court Action. On or about March 2007, Respondents moved for an order in the Supreme Court Action staying this proceeding and for consolidation of this proceeding with the Supreme Court Action.[FN3] In his March 19, 2007 affirmation in support [*8]of said motion, Lee M. Nigen, Esq., asserts that all claims originate out of the February 16, 2005 flood and that "plaintiffs are requesting that the Court consolidate the several cases now pending between the parties since they all concern the same facts (Nigen , Aff in Sup, March 19, 2007, par 8).

However, the moving papers were deficient, they failed to provide Supreme Court with the index numbers of the cases for which consolidation was sought, the courts in which the cases were pending, the status of the cases, or copies of any relevant pleadings. Based on these defects, Judge York issued a decision dated April 26, 2007 denying the motion for stay or consolidation. Judge York's decision provided in pertinent part "(t)he papers do not indicate the name of any case and index number of the case it wishes to consolidate." In fact, the March 2007 Stipulation essentially afforded Respondents the same relief they

were seeking through consolidation. This proceeding was put on hold while the Supreme Court Action was litigated, and the understanding was that Respondents' claims regarding breach of warranty of habitability and for repairs would be litigated in the context of the Supreme Court Action. Further evidence that Respondents understood the dismissal of the complaint in Supreme

Court to encompass their cause of action for warranty of habitability is found in Respondents' motion for renewal and reargument of Judge York's decision awarding Petitioner summary judgment and dismissing the complaint in its entirety. In his October 23, 2008 affirmation in support of said motion, counsel for Respondents

argued that Judge York made a mistake dismissing the warranty of habitability claim on summary judgment. The affirmation cites to RPL 235 b and states "the statute applies to cooperative apartment owners as well, and damages are awarded in the form of abatement of rent (Par 20, 10/23/08, Nigen, aff in support). Mr. Nigen argues that Petitioner was on notice of the condition and failed to take reasonable actions to address the condition. The affirmation ends by asserting "(i)n conclusion, defendants breached their duty of warranty of habitability by failing to correct the harmful water damage and/or mold conditions in Plaintiffs' apartment and they are responsible for any ensuing damages. In the least, a question of fact exists as to these claims, and therefore, summary judgment was not appropriate and should have been denied (Par 27-28, Nigen, aff in sup, 10/23/08).[FN4] "

It is well settled that a motion for summary judgment, which is granted and results in the dismissal of the complaint, is a disposition on the merits for purposes of res judicata (Murray v. National Broadcasting Co., Inc. 178 AD2d 157 [1st Dept 1991]); (Strange v. Montefiore Hosp. and Medical Center, 59 NY2d 737 [1983][grant of a motion for summary judgement resulting in [*9]dismissal of complaint based on insufficiency of proof given res judicata effect]).

Moreover, the fact that the parties' March 2007 Stipulation allowed for restoration of counterclaims, once the Supreme Court Action had ended, does not require a different result. First, the Court finds that the parties did not intend that provision to allow for relitigation of claims that were determined on the merits. At the time of the stipulation, the parties were not even certain if an action had been or would be commenced. Paragraph 3 of the March 2007 Stipulation provides in pertinent part that it was a plenary action "commenced or soon to be commenced in Supreme Court" and provided an index number and the parties.

Even once commenced, there was no way for the parties to know in March 2007 how the Supreme Court Action would end, and whether there would be a final determination on the merits. This is apparent from the language in paragraph 4 of the March 2007 Stipulation which provides "(i)n the event ... the Supreme Court action is discontinued, dismissed or abandoned, petitioner may move to restore this case to the calendar.... & Resp. would then have right to pursue its cntrclms (sic)". The restoration of counterclaims in this proceeding can only have been meant to apply in the event the Supreme Court Action ended without a final adjudication on the merits as to those claims.

Even were the parties' intention otherwise, the Court is not required to enforce a stipulation which allows retrial of a matter already litigated. The doctrine of res judicata is based on strong public policy considerations.

A judgment is a bar not because a party has done some act which precludes him from asserting a right or title; it is properly a bar on principles of public policy, because the peace and order of society, the structure of our judicial system, and the principles of our government require that a matter once litigated should not again be drawn into question between the same parties or their privies. The doctrine of res judicata rests on two maxims that A man should not be twice vexed for the same cause,' and that It is for the public good that there be an end to litigation.' A party whose interests are placed in jeopardy by a trial has a right to judicial immunity from the consequences of further trials involving the same issues. The rule of res judicata does not rest wholly on the narrow ground of technical estoppel nor on the presumption that former judgment was right and just, but on the broad ground of public policy that requires a limit to litigation, like the statute of limitations, it is a rule of rest.

Evans v. Monaghan (dissent), 282 AD 382,392-393 (1st Dept. 1953) citing 2 Freeman on Judgments, § 626.

Moreover Petitioner timely asserted the defense in the motion practice that resulted in the November 2008 Restoration Order. Additionally, even though res judicata is considered to be an affirmative defense, courts may sua sponte dismiss a cause of action based on res judicata where appropriate (390 West End Avenue Associates v. Youngsten, 221 AD2d 292 [1st Dept 1995][affirming courts sua sponte dismissal based on res judicata where a prior judgment operated as a bar to the action]; (Modica v. Zergebel, 160 AD2d 689 [2nd Dept 1990]).

Moreover the parties may not stipulate to prevent the court from applying the doctrine where appropriate. In a case on point Civil Court held "(t)he stipulation between the parties may not deprive the court of its inherent power to apply the doctrines of res judicata or collateral estoppel. These doctrines, essential as they are to promote finality in the resolution of disputes [*10]may not be denied to the Court by agreement of the litigants (McKeon v. Prudential Lines, Inc., 108 Misc 2d 873, at 876-877 [1981])." See also Scherer v. The Equitable Life Assurance Society of The United States, 347 F3d 394(2d Cir 2003); Salahuddin v. Jones , 992 F2d 447 (2d Cir 1993)(dismissal of recycled claims not only appropriate but virtually mandatory). Based on the foregoing, the Court dismisses Respondents claims for breach of warranty of

habitability with prejudice.

AN ORDER TO CORRECT

Similarly, this Court issues no order to correct any alleged conditions in the Subject

Premises. Respondents have litigated this issue in no less than four other cases. In addition to the three HP Proceedings commenced by Respondents, the fifth cause of action in the Supreme Court Action was based on Petitioner's alleged failure to correct alleged conditions which violated the Housing Maintenance Code and other applicable statutes. The first counterclaim asserted in Respondents' answer to this proceeding, and the fifth cause of action asserted in the Supreme Court Action are almost word for identical and both seek the same relief of an order to correct. The relief sought in the complaint expressly states "(p)laintiff demands that all hazardous conditions in their apartment be corrected by Defendants."

Additionally, Respondents chose to litigate these claims within the HP Proceedings they commenced for that express purpose. Respondents obtained four court ordered inspections of their apartment for the identical conditions. These inspections took place on: January 21, 2006, in the 1st HP Proceeding; and May 25, 2006 in the 2nd HP Proceeding; August 14, 2006 in the 3rd HP proceeding; and finally on March 1, 2007 in this proceeding. Not a single one of those inspections found a violation for mold, and all violations found were admittedly corrected by Petitioner before the trial herein.

Given the foregoing, the Court dismisses any request by Respondents for an order to correct as being barred by res judicata and not supported by the preponderance of credible evidence at the trial herein.

WHAT IF ANY ATTORNEYS FEES & LATE CHARGES IS PETITIONERENTITLED TO IN THIS PROCEEDING?

The March 2007 Stipulation addresses the claim for attorneys fees and late charges and provides that late charges of $1000.00 and attorneys fees of $12,585.00 due through March 2007 were withdrawn, conditioned on Respondents' compliance with the payments required in that stipulation. The stipulation further provided that in the event Respondents defaulted on payment or the Supreme Court Action ended Petitioner could restore this case to the calendar to seek a judgment for any sums that remain unpaid.

The March 2008 Stipulation provides "Late/legal fees severed for plenary proceeding." The stipulation does not further detail which late/legal fees are intended to be severed, and provides that all other terms of the March 2007 Stipulation shall remain in effect. The motion that was settled by the March 2008 stipulation sought a judgment in the amount of $6,223.49 alleged to represent "unpaid maintenance, rent and additional rent due pursuant to the Proprietary Lease...". The motion also sought an award of reasonable attorneys' fees incurred in this proceeding.

The rent history annexed to the moving papers asserted that there was $10,915.26 due in maintenance arrears, $1300.00 due in late fees, $16,502.00 due in legal fees plus various [*11]assessments. The March 2008 Stipulation provided for the payment of the $10,915.26 due in maintenance, as well as payment of $238.60 for an assessment.

Petitioner is the prevailing party in this proceeding, and as such is entitled to an award for reasonable attorneys fees incurred herein. Paragraph 28 of the proprietary lease entitles Petitioner to fees in this proceeding, and provides that the fees incurred shall be payable as additional rent on demand. However, given that the March 2008 Stipulation clearly severed late and legal fees for a plenary action, that stipulation is binding, and Petitioner may not now seek attorneys fees and late fees in this proceeding, but must sue for them separately, as stipulated to by the parties in the March 2008 Stipulation ( Hallock v. State of New York, 64 NY2d 224 [1984]; Matter of Stark 233 AD2d 450 [1996]).

REMAINING CHARGES SOUGHT BY PETITIONER

As of the date of the trial there were no arrears alleged due in base maintenance (exhibit 2).

Petitioner seeks $3226.18 as reimbursement for repairs done at the Subject Premises. The proprietary lease (Exhibit 1) provides, in paragraph 28, that if Respondents default and Petitioner incurs any expense in performing acts which Respondents were required to perform, that expense shall be paid by Respondents as additional rent. Similarly, paragraph 19 of the proprietary lease specifically addresses said defaults as it pertains to repairs inside the Subject Premises and defines the sums expended as additional rent.Finally, pursuant to paragraph 18(a) of the proprietary lease, the repairs performed by Petitioner in correcting the violations from the HP Proceedings were the Responsibility of Respondents. As such, Petitioner has established a claim for an award of repair charges in the amount of $3226.18.

Petitioner also seeks to collect a real estate tax assessment in the amount of $822.00. The managing agent, Carole Ferrara testified that tax assessments were calculated according to the number of shares. Respondents did not dispute owing a real estate tax assessment, nor the amount of the assessment. As such, Petitioner has established a claim for an award of real estate tax assessments in the amount of $822.00.

Based on the forgoing, Petitioner is awarded a final judgment in the amount of $4048.18. Issuance of warrant is stayed five days for payment.

This constitutes the decision and order of this Court.

Dated:July 2, 2009

New York, New York

________________________

Hon. Sabrina B. Kraus

To:Thomas S. Fleishell, & Associates, P.C.

By: Thomas S. Fleishell, Esq.

Attorneys for Petitioner [*12]

561 Seventh Avenue, 19th Floor

New York, NY 10018

(212) 972-1355

Lee M. Nigen & Associates, P.C.

By: Lee M. Nigen, Esq.

Attorney for Respondents-Tenants

3006 Avenue M, Suite 1D

Brooklyn, New York 10018

(212) 972-1355 Footnotes

Footnote 1: However, BGJ testified on cross-examination that he did not believe that a mold condition existed in the Subject Premises within seventy-two hours of the leak.

Footnote 2: The Court issuing the November 2008 Restoration Order was not aware of this, because the complaint annexed to the moving papers was incomplete. Paragraphs 37 through 42 of the complaint, which assert the cause of action for breach of warranty of habitability, were not provided in the annexed exhibit (see Notice of Motion dated September 30, 2008, Exhibit E thereto).

Footnote 3: The Court has requisitioned the Supreme Court file under Index Number 103156/07 and has taken judicial notice of all of the contents of said file as well as all decisions and orders issued therein.

Footnote 4: Assuming arguendo the claim of breach of warranty of habitability were not barred by res judicata, the Court does not find that Respondents are entitled to any rent abatement in this proceeding. Petitioner was prepared within 4 days of the incident to cut out and replace any damaged sheetrock in the Subject Premises. Respondents prevented them from doing this work for years. If in fact there is a mold condition in the Subject Premises, it was caused by Respondents repeated and unreasonable failure to allow Petitioner access to address the condition precluding an award of an abatement (56 MacDougal St Co v. Miller, NYLJ April 24, 1990, p. 22 at 3 [App. Term 1st Dept]), compounded by Respondents failure to have the work done themselves and seek reimbursement from Petitioner.