Bace v Tai Mai Realty, Inc.
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Bace v Tai Mai Realty, Inc. 2012 NY Slip Op 30184(U) January 22, 2012 Sup Ct, NY County Docket Number: 116757/02 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 112612012' Tr [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART Index Number : 116757/2002 BACE, BILL INDEX NO. vs. A/ MOTION DATE TAI MAY REALW, INC. SEQUENCE NUMBER : 009 VACATE 0 MOTION CAL. NO. PAPERS NUMBERED Notice of Motion/ Answering Affidavits - Exhlblts - Affidavlts - E x h i b l t s G F 7 L) Rapiylng Affidavits u FINAL DISPOSITION 0 NQN-FINAL DISPOSITION Check if appropriate: n DO NOT POST REFERENCE Check one: SUBMIT ORDER/JUDG. 0 SETTLE ORDER /JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 7 -_-----__________________________ X F'I L; E D JAN 25 2012 BILL BACE, Plaintiff, NEW YORK COUNTY CLERKS OFFICE Index No.: 1 1 6 7 5 7 / 0 2 -against- DECISION and ORDER TAI MAY REALTY, I N C . , Defendant. __________________-______________ Hon. MICHAEL D. STALLMAN, J.: X Plaintiff p r o se moves, pursuant t o C P L R 5015 (a) ( Z ) , to vacate this Court's p r i o r order, date( February 10, 2009, based on assertions of newly discovered evidence and fraud. BACKGROUND Plaintiff is a tenant in a building owned by defendant. The New Y o r k State Division of Housing and Community Renewal .(DHCR) " granted plaintiff a rent reduction, based on plaintiff's complaint of a sent overcharge. Defendant did not challenge the DHCR determination. Based on the DHCR determination, plaintiff entered a judgment (the Judgment) against defendant in Supreme Court, New York County, filed on J u l y 29, 2002. By decision and order dated February 10, 2009, this Court vacated the Judgment, based on a showing that plaintiff sent notices of both the DHCR determination and the court proceeding to an incorrect address. This Court also concluded that, because plaintiff's rent was p a i d in whole or i n p a r t by the Department 1 [* 3] of Social Services ( D S S ) , a'question remained as to whether plaintiff or DSS was the party entitled to any refundlrestitution for rent overcharge. Despite this Court's order vacating the Judgment entered against defendant, plaintiff filed a notice of entry of j,udgment on May 25, 2009, based on the Judgment that had been v a c a t e d . On May 16, 2011, Justice Joan M. Kenney granted defendant's motion s t a t e d , among other things: "Since Justice Stallman's decision and Order, it appears that plaintiff has continued to attempt to c o l l e c t on the Judgment. Plaintiff does not deny this fact. Instead, plaintiff attempts to re-argue/renew J u s t i c e Stallman's decision to v a c a t e this Court's judgment a g a i n s t defendant. ... plaintiff has not proffered a good reason as to why he is attempting to collect on a judgment, b y way of seeking to levy defendant's assets, based on a judgment that plaintiff was f u l l y aware of [sic] had been vacated by a Supreme Court Justice's order." -. On May 25, 2011, Justice Kenney signed a long-form order which, dismissed this action with prejudice, " b a s e d on plaintiff B I L L BACE's frivolous actions committed on the court pursuant to 22 NYCRR Section 130-1.1 ( c ) and his illegal conduct in violation of 22 NYCRR Section 130-1.- a (b). The Office of the Sheriff is prohibited from executing on a vacated judgment and further restrained from levying the assets of Defendant TAL MAY, pursuant to a vacated judgment, indexed by the C o u r t as 1 1 6 7 5 7 / 2 0 0 2 . " (Petitioner's Ex. M. ) consists of four letters: 2 [* 4] 3, 2 0 0 0 (Motion, Ex. R); 2. Letter of Keith S. Barnett, E s q . to DHCR, dated October: 25, 2 0 0 0 (Motion, Ex. S); 3. Letter of Ben Wong, E s q . , dated August 17, 2001, with attachments (Motion, Ex. T); and 4. Order of DHCR, dated October 5, 2001 (Motion, E x . U). These letters indicate that defendant did participate in the DHCR proceeding, but that defendant never received a copy of DHCR's final order because it was mailed to the incorrect address. Consequently, defendant never had the opportunity to challenge D H C R ' s findings administratively. In paragraph 73 of plaintiff's affidavit in support of his motion, plaintiff admits to having known about the documents in August of 2009, when he personally handed c o p i e s of the Barnett and Wong letters to defendant's attorney. The C o u r t notes that the DHCR order is the one upon which plaintiff instituted this lawsuit. Plaintiff alleges that defendant participated in the DHCR proceeding and DHCR found against it, as evidenced by these letters; therefore, plaintiff alleges, the DHCR determination was not based on defendant's default. Hence, plaintiff alleges that this Court should not have vacated the e a r l i e r judgment, In opposition, defendant contends that, because this action was dismissed with prejudice, plaintiff's motion should be d e n i e d 3 [* 5] automatically. In t h e alternative, defendant maintains that, by plaintiff's own admission, he has been in possession of what he claims is "newly discovered evidence" for over two years, and he that, because it never received notification of the DHCR determination, it did not seek administrative review of the matter, n o r does it affect this Court's earlier finding that defendant was never properly served in the initial proceeding in this Court. DISCUSSION CPLR 5015 provides, in pertinent part: " ( a ) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be j u s t , on motion of any interested person . with such notice a s the court may. direct, upon the \-, 1 trial, would p r o b a b l y have produced a different result and which could not have been discovered in time to move f o r a new trial . . . . If Plaintiff's motion is denied. In the f i r s t instance, plaintiff admits that he was in possession of the letters for over two years (Plaintiff's Aff., 7 3 ) , and, therefore, they do not constitute newly discovered evidence upon which this motion may be founded ( B o n g i a s c a v B o n g i a s c a , 289 AD2d 121 [l*' Dept 20011) ; neither does such 4 ΒΆ [* 6] not properly served. Ltd., Woori American Bank v Winopa I n t e r n a t , m a 63 AD3d 490 (13tDept 2009). In addition, the DHCR determination was the basis of plaintiff initiating this action, 90 t h a t he cannot now assert that it is newly discovered. Similarly, plaintiff has failed to articulate any fraudulent conduct on the part of defendant that would warrant a different conclusion. The fact that defendant participated in the initial DHCR proceeding does not negate the fact that it never received a copy of DHCR's October 5, 2001 determination, because that document was sent to the incorrect address. Thus, defendant was not afforded the opportunity to challenge DHCR's findings administratively p r i o r to plaintiff seeking to enforce a judgment based on that finding; neither do those letters negate the fact Forthermore, this action was already dismissed with prejudice, which alone demands denial of the instant motion. CONCLUSION Based on the foregoing, it is hereby ORDERED that plaintiff's motion is denied. Dated: January, 3 New York, 2012 / 'NY ENTER: FILED JAN 25 2012 NEW YORK COUNTY CLERK'S OFFICE Michael D. Stallman, J . S . C .
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