Solomons v Douglas Elliman LLC
2012 NY Slip Op 30929(U)
April 9, 2012
Sup Ct, New York County
Docket Number: 110636/2010
Judge: Judith J. Gische
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lNED 0N411012012
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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORX COUNTY
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PRESENT:
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Index Number 1 110838/2010
SOLOMONS, PAUL
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vs.
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Upon the fooregoinq papers, itis brtkmdthat thk motlm IC
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INDEX NO,
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 10
DecisionlOrder
Index No. 1 10636l2010
Seq No.:
009
Plaintiff,
-againstDOUGLAS ELLIMAN LLC d/b/a PRUDENTIAL
DOUGLAS ELLIMAN, SAN HUNIE KWON,
ELIPARK REALTY GORP., GEORGE
AHI-HASSOUN, CITY CONNECTIONS REALTY
INC., 23 MANHATAN VALLEY NORTH LLC,
BARUCH SINGER, RANDY BARUH, AIM
REALTY SERVICES INC., TARIQ HAKEEN , OLD
BROWNVILLE RENAISSANCE GORP., STEPHAN
E. GLEICH, ERIK RODRIGUEZ, 650 WEST 189
LIMITED PARTNERSHIP., BRIAN RITTER,
BEST APARTMENTSl INC., BEST
APARTMENTS NORTH, INC., HOWARD
FEINGOLD, JOSEPH BRANCO, CITY SITES
MARKETING INC. d/b/a CITY SITES NEW
YORK, S C O l T HAKIM and BRIAN DUSSEAU,
Present:
Hon. Judith J. Gische, JSC
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Defendants.
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Recitation, as required by CPLR 2219 [a], of the papers considered in tt#k&iew 0)this
(these)rnotion(s):
I----
Papers
Numbered
Motion Sequence No. 009
Gleich's nlm (dismiss) wlGAL affirm, SBG afhd, exhs . . . . . . . . . . . . . . . . . . . . . .
Pltfsoppw/AMaffirm,exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Gleich's reply wlGAL affirm, exhs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
2
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Gische J.;
This is an action for housing discrimination based on a disability, a violation of
the Administrative Code of the City of New York 9 8-107(5). Presently before the court
is a motion by defendant Stephan B. Gleich ("Gleich")to have this action dismissed on
the basis that he was not served with the summons and complaint although this action
Page 7 of 5
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was commenced in August 2010 (CPLR 5 3211 [a][l]). Gleich also contends the
complaint fails to state a cause of action as to him (CPLR 321 1 [a][7]) and, therefore,
the court should not extend plaintiffs time to serve for that reason. Finally, Gleich
points out that although plaintiff apposes this motion, plaintiff has not cross moved for
more time to serve.
A prior decision and order by this court (Order, Gische J., 72/13/10}
denying Old
Brownsville Renaissance Corp.’s (“OBRC”)pre-answer motion to dismiss was
appealed. The crux of Eleich’s motion is that plaintiff had ample time to serve him but
failed to. Gleich contends further that the complaint fails to state a cause of action
against him because, among other things, the building does not have at least six (6)
units and, therefore, outside the scope of the New York City Human Rights Law. Thus,
Gleich surmises that plainti is trying to circumvent the stay against OBRC obtained
pending appeal. For the reasons that follow, Gleich’s motion to dismiss is denied.
The statute of limitations has not run on plaintiff’s claim. In fact Gleich
acknowledges that even if this case is dismissed, plaintiff will bring a new action against
f
him. His rationale for why this is a better course o action than allowing for late service
is that he will not be “lumped together with unrelated parties and unrelated allegations.”
s
This argument is made despite the fact that Gleich i admittedly an officer of OBRC.
Although Gleich had actual knowledge of this action, h e nonetheless argues that
he will be prejudiced if this action is not dismissed against him. The ”prejudice” he cites
is that he has not participated in any of the discovery conferenoes i this case and that
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he would have to defend the charges against him. These statements do not, however,
demonstrate “prejudice.”
Page 2 of 5
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Plaintiffs attorney provides her aftinnation explaining the delay jn serving Gleich.
She states she reached out to Gleich when OBRC was served and relied on his
representation that he was not a proper party because someone else by the name of
"Robert Travin" was the person who should be a named defendant. Mr. Travin is now
deceased and the emails exchanged between plaintiffs attorney and Gleich shows he
may have led plaintiffs counsel to believe he was not a proper party. In his sworn
affidavit, Gleich does not dispute any of these statements made by plaintiffs attorney.
Piaintiff has already indicated that were the court inclined to dismiss this action
he would commence a new adon against Gleich. Since the two cases would involve
common questions of law or fact, this court would favorably consider a motion for
consolidation were it made (CPLR 602 [a]). The salutary goal of CPLR 602 to avoid
unnecessary costs and delay (CKS Ice Cream Co., Inc. v. Frusen Glade Franchise,
Inc 172 AD2d 208 [lut 19911). An important consideration in deciding to
Dept
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consolidate cases is also judicial economy. Consequently, allowing plaintiff to now
serve the complaint would, as a practical matter, avoid the inevitable motion to
consolidate, which even Gieich anticipates would be made'andgranted.
Gleich contends that this case is without merit because the building has fewer
than six units. Gleich further claims that this is the same subject matter as OBRC's
appeal and, that by keeping him in this action, plaintiff is attempting to circumvent the
appellate stay on plaintiff proceeding against OBRC. This argument is wholly
disingenuous given Gleich's insistence that he stands apart from OBRC and the claims
against that company. In any event, OBRC's appeal was recently decided (April 4,
2012) and this court's prior order was affirmed (Solomon v. Douqlas Elliman. LLC,
Page 3 of 5
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-Misc3d-,
2012 NY Slip Op 02577 [I" 20121). In affirming this court, the
Dept
Appellate Division wrote that "OBRC's dismissal motion was properly denied because,
at this stage, neither Travin's affidavit nor the certificate of occupancy i sufficient to
s
rebut plaintiffs claim that the subject building contains at least six units...the 22-year-old
certificate of occupancy does not conclusively prove how many apartments were in the
building when plaintiff tried to rent in it."
Plaintiff has not senred a cross-motion to extend his time to serve Gleich.
Affirmative relief will ordinarily not be granted to the party responding to the motion in
chief, even if such relief is addressed in opposition (see Guqqenheirn v. Guqaenheim,
709 A.D.2d 1012, 7013 [3d Dept 19851).
Given the unique circumstances of this case, but also taking into consideration
that plaintiff did not cross move for an extension of time to serve his complaint, Gleich's
motion to dismiss is denied provided, however, that plaintiff brings the appropriate
motion to extend his time to serve the complaint. Such motion must be served no
later than Thirty (30) Days after this decislonlorder appears scanned into
SCROLL. Should plaintiff fail to comply with this order, Gleich may renew his motion to
dismiss.
Concluslon
It is hereby
ORDERED Gleich's motion to dismiss is denied for t h e reasons stated; and it
that
is further
ORDERED plaintiff must move within the time provided otherwise Gleich may
that
renew his motion; and it is further
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ORDERED
that any relief requested but not addressed is hereby denied; and it is
further
ORDERED this constitutes the decision and order of the court.
that
Dated:
New York, New York
April 9, 2012
So Ordered:
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