Samson v 91st St. Tenants Corp.
2012 NY Slip Op 30950(U)
April 10, 2012
Supreme Court, New York County
Docket Number: 112284/06
Judge: Anil C. Singh
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SUPREME COURT OF THE STATE O F NEW YORK
NEW YORK COUNTY
T1IQ.N. ANI.. C. SWGH
Index Number : 112284/2006
SAMSON, JAMES G.
91ST STREET TENANTS CORP
SEQUENCE NUMBER : 004
MOTION SEQ. NO.
Notlce of MotlonlOrder to Show Cause - Affldavlts - Exhlblts
Answering Affidavits - Exhibits
Upon the foregoing papers, It Is ordered that this motion is
, were read on thls motlon tolfor
The following pepem, numbered 1 to
- / &
CHECK AS APPROPRIATE: ...........................
MOTION I : 0GRANTED
0DENIED 0GRA ED IN PART nOTHER
CHECK IF APPROPRIATE: ................................................
[:.i DO NOT POST
SUPREME COURT OF THE STATE OF NEW YOKK
COUNTY OF NEW YORK: PART 61
_ _ _ _ _ - - - - - - - _ _ _ _ _ _ - - - - - - - - - - - - --- - - - X
JAMES G . SAMSON and DONNA A . SAMSON,
STREET TENANTS CORP., SHARON
WEINSTEIN, CONNIE MADDEN, REBECCA
FLYNN, STEVEN DOLAN, HENRY DUNN 111,
JAMES DUNHAM, EEENA KORNBLUTH,
JULIE PRUNIER, THE WAVECREST
MANAGEMENT TEAM, LTD., JANE ZASH and
M I L C. SINGB, J.:
Motion sequence numbers 003 and 004 are c o n s ~ ~ ~ L ~ B t $ ' S O F F l C E
In motion sequence number 003, defendant Jane Zash (Zash)
moves, pursuant to CPLR 3212, for summary judgment dismissing the
complaint asserted as against her.
In motion sequence number 004, defendants 9 l S t S t r e e t Tenants
Corp. (Tenants Corp.) and the Wavecrest Management Team, Ltd.
(Wavecrest) (together, moving defendants) move, pursuant to CPLR
3211 and 3212, for summary judgment dismissing the complaint
asserted as against them.
By decision filed on J u l y 30, 2010, this action was dismissed
as asserted against the other individual defendants
This is an action for property damage that plaintiffs
allegedly suffered when water flowed into their apartment, located
at 108 East 9 1 S t Street, Apt. 9A, New York, New Y o r k , on November
Zaah resides in the apartment immediately above
plaintiffs‘ unit. According to the bill of particulars, plaintiffs
assert that Zash allowed water to leak from h e r b a t h t u b ,
accumulate, and escape into plaintiffs‘ unit.
Motion, Ex. B.
contends that she is entitled to summary judgment because there is
no evidence that t h e source of t h e leak emanated from her
Plaintiff James G. Samson (James) was deposed four times in
this matter (March 17 [Dl], April 9 [D2], April 16 [ D 3 ] and
September 25, 2008 [ D 4 ] ) , and testified that, on November 17, 2005,
he returned home to find water on the floor of his apartment.
Motion, Ex. D 2 , at 70-71. James stated that he did not know what
caused the leak.. Id.
A f t e r discovering the water in his
apartment, he went to zash’s apartment, accompanied by the
superintendent, Juan Alvarado (Alvarado), and he said that,
although he did not e n t e r Zaah’s apartment, he did not see any
water on her floor.
I d . a t 76-77; D3, a t 180-181. At some point
after the incident, James was informed that there was no water
overflowing from Zash’s bathtub. D3 at 1 8 5 .
James said that he
did not believe that the leak that occurred on November 17, 2005,
was caused by an overflowing bathtub, but that it was caused by
some problem underneath t h e Zash‘s bathtub.
D3, at 192-193. James
stated that he had the "distinct impression" that Zash's tub did
not overflow, and that he has no indication that her tub did
overflow. D3, at 198, 201-202; D4, at 13-14.
Samson (Donna) was deposed in this matter
and testified that she learned about the leak from h e r husband
James and that she does not know what caused the leak.
Zash appeared f o r a deposition and testified that she was away
on a trip on the date of the incident but, on her return home, she
did not see any water damage to the floors of h e r bathroom or any
other portion of her apartment.
Zash EBT, at 46, 52-53.
J a y Yablonsky (Yablonsky), the director of p r o p e r t y management
for Wavecrest, t h e building's managing agent at the time of the
incident, testified on behalf of Tenants C o r p .
that he was never able to identify the source of the leak that
caused damage to plaintiffs' apartment.
Yablonsky EBT, at 38.
Yablonsky said that, typically, the cooperative's shareholders are
responsible for plumbing inside of their units but not for plumbing
inside of the walls.
Id. at 168-170.
Alvarado was also depoaed,in t h i s matter and testified that,
in November of 2005, he noticed water leaking into plaintiffs'
at 29-31. Alvarado said that, after seeing
the leak in plaintiffs' apartment, he went to zash's apartment and
used the emergency key to enter because no one was at home.
Alvarado said t h a t he noticed water in the bathtub but that
the floor in the bathroom was not wet, nor were the floors wet
anywhere else in Zash’s apartment.
Id. at 32, 34, 8 9 .
A l v a r a d o stated that there w e r e no signs of water having flowed
over the top of zash‘s tub.
at 34, 89. Additionally, Alvarado
averred that he did n o t observe water leaking from Zashrs apartment
into plaintiffs’ unit.
Id. at 100.
However, Alvarado testified
that the handle on the bathtub faucet was not working and that
there was tape holding the handle in the c l o s e d position.
zash argues that there is no evidence that she was in any way
responsible for the leak that allegedly caused damage to
In opposition to this motion, plaintiffs assert that, contrary
to Zash‘a argument, at the time of the incident Zash‘s apartment
was not unoccupied but was occupied by a housekeeper who was
looking after Zash‘s dogs,
Zash EBT, at 48.
Further, according to
Zash’s testimony, she learned of the incident when she called the
housekeeper the night of November 1 7 , 2005; the housekeeper
informed her that, when she returned to the apartment the evening
of the incident, James and Alvarado approached her and had her look
at plaintiff’s apartment, whereupon s h e discovered water in Zash’s
I d . at 51.
zash testified that she did not know how
water came to be in the tub, but admitted that there was a leaky
faucet handle that sometimes dripped water.
Id. at 51-52.
said that it was never determined that the cause of the leak to
plaintiffs’ apartment came from that drip.
Id. at 52.
In an e -
mail sent by Zash to the proprietary tenant in the unit below
plaintiffs‘ apartment, Zash said:
“My tub didn‘t overflow. My faucet was dripping and
filled my tub. The p i p e s in my bathroom sink and tub
constantly backup which apparently effect the overflowmy guess is that this back-up caused the water damage
from a pipe in the walls.”
Moreover, in his deposition, Alvarado stated that, two weeks
before the incident, Zash told him about the leaky faucet, and he
told her that she would have to call a plumber because he could not
Alvarado EBT, at 34,
According to plaintiffs, the e-mail, along w i t h her testimony
and Alvarado‘s deposition, provide evidence that Zash was aware of
a problem with her faucet for a sufficient amount of time in which
she c o u l d have remedied the problem, and h e r failure to do so
resulted in the damage to their apartment.
It is plaintiffs‘ contention that, based on the foregoing,
there are sufficient questions of fact so as to defeat Zash‘s
In addition, plaintiffs also argue t h e
application of the doctrine of res ipsa loquitur to the instant
facts so as to hold Zash liable for their damages.
In reply, Zash maintains that, even if the faucet in her
bathtub was not working, there is no evidence to substantiate the
claim that this leaky faucet caused the damage to plaintiffs‘
Further, Zash says that the affidavit submitted by
James in support of plaintiffs' opposition supposing that the water
could have been running for a long period of time in h e r bathtub,
but that opinion is only conjecture and speculation, and is
unsupported by any evidence.
Moreover, Zash points out that James consistently says that he
does not believe that the leak was caused by Zash's tub
overflowing, but that it resulted from a problem underneath the
at 192-193. Additionally, Zash argues that
plaintiffs have failed to adduce any evidence linking the leak into
their unit with her bathtub.
Zaah points out t h a t plaintiffs have
not provided the affidavit of a plumber or any other expert that
fills that logical gap.
Lastly, Zaah contends that the doctrine of res i p s a loquitur
is inapplicable to the facts of this case, because plaintiff has
failed to identify the instrumentality t h a t caused the leak.
Motion sequence number 004 is based on the seven causes of
action asserted as against moving defendants:
(1) Tenants Corp.'s
negligence in failing to maintain, or causing Zaah to maintain, the
plumbing in Zash's apartment; (2) Tenants Corp.'s negligence based
on the proprietary lease requiring Tenants Corp. to maintain the
failure to repair the
premises in good repair; (3) Tenants C o r p . ' ~
damage to plaintiffs' apartment; (4) Tenants Corp.'s breach of t h e
warranty of habitability; ( 5 ) Tenants C o r p . ' ~
failure to pay
$750.00 in settlement of a prior action for leaks occurring to
plaintiffs' unit in and before January, 2003; ( 6 ) damages based on
the cost of plaintiffs' relocating during the period of the
reconstruction; and (7) damages based on plaintiffs' paying their
contractor for work the contractor performed on behalf of moving
defendants to remedy the structural problems caused by a finding
that the steel supports under plaintiffs' ceiling were
In addition to the claims involving Zash, moving defendants
state that, during January of 2003, while addressing p r i o r leaks,
exterior work was being performed on the building, which allegedly
caused damage to one of plaintiffs' windows and air conditioning
This claim was settled f o r $750.00.
In addition, in May of 2003, plaintiffs began renovation work
on their apartment to correct damage from a prior leak which
occurred in J u n e of 2001.
James testified that he was compelled to
proceed with these renovations because of t h e flood; however, he
also averred that he p l a n n e d to renovate a portion of the apartment
regardless of t h e flood. D4, at 50-51. During the renovations,
plaintiffs relocated f o r six months, paying $3,000.00 per month for
the alternate housing, in addition to paying their maintenance
charges on the unit, p l u s incurring $200.00 a month storage
charges. While t h e renovations were in progress, an engineer
determined that the roof s l a b over plaintiffs' master bedroom had
dropped three inches and that the roof structure was unstable and
During this reinforcement, a portion of the
ceiling slab in plaintiffs' apartment collapsed. According to the
complaint, plaintiffs allege that they suffered additional leaks
during the renovations.
Moving defendants argue that the causes of action a s s e r t e d as
against them relating to the leak in Zash‘s apartment must be
dismissed because there is no allegation that moving defendants
either caused the drain blockage in Zaah‘s apartment o r had actual
or constructive notice of such a problem, and because there is no
evidence t h a t they are responsible for damages resulting from
improper maintenance of adjacent apartments.
Paragraph 18 of the
proprietary lease specifically states:
“The Lessor shall not be held answerable for any repairs
in or to [the interior of the apartment] except as
hereinabove specifically provided, or for any damage
to the Apartment, or to any of its contents, cause by
electric current or by the leakage or overflow of
water, gas or steam from any water pipe, gas pipe,
steam pipe, drain pipe, basin, tub or other receptacle
belonging or appertaining to any other apartment in the
building, unless the damage shall have been caused by
the act or neglect of the Lessor or of its employees.”
Motion, Ex. F
Moving defendants also a r g u e that plaintiffs l a c k standing to
assert any breach of Zash’s proprietary lease.
say that the portion of the proprietary lease upon which p l a i n t i f f s
base this cause of action states:
“(18) The Lessee shall keep the interior of the Apartment
. . . in good r e p a i r . . . and shall be responsible for the
maintenance, repair and replacement of plumbing . . . .
(19) If the Lessee shall f a i l for 3 0 days after notice
to make repairs to any part of the Apartment, its
fixtures or equipment as herein required, or shall
fail to remedy a condition which has become objectionable
to the Lessor . . . or if the Lessee or any person dwelling
in the Apartment shall request the Lessor, . . . the Lessor
may make such repairs without liability on t h e Lessor."
Motion, Ex. F.
According to moving defendants, these provisions do not
indicate that anyone o t h e r than the named lessee of t h e subject
apartment is an intended beneficiary of this agreement.
Moving defendants maintain that the cause of action asserted
as against them for breach of the warranty of habitability must be
dismissed because the alleged damage does not rise to the level of
being unfit for human habitation.
Moreover, plaintiffs do not
allege that they could not reside in the unit, but o n l y assert
Moving defendants also provide l e t t e r s from James in which he
returned their check for $750.00 in settlement of the prior dispute
and so, claim moving defendants, in the interests of justice, the
cause of action seeking this sum should be dismissed baaed on
plaintiffs' refusal to accept the check.
Motion, Exa. H
Moving defendants maintain that the cause of action for their
alleged failure to pay plaintiffs' contractor for assisting in
repairing the structural problems with the building should be
dismissed because plaintiffs have never provided any proof that
they paid the contractors for this work.
Moving defendants claim that they cannot be held responsible
for the structural repairs plaintiffs claim that they made d u r i n g
their renovation because such repairs were made voluntarily by
plaintiffs and plaintiffs did not notify moving defendants of these
alleged repairs until three years after the fact.
Moving defendants aver that plaintiffs are not entitled to
damages for injury to the renovated portions of their apartment due
to leaks prior to the November 2005 leak because plaintiffs have
made no showing that moving defendants were negligent. Similarly,
moving defendants state that plaintiffs are not entitled to
reimbursement f o r their relocation expenses since they voluntarily
decided to move o u t of the apartment while it was being renovated,
and James testified that renovations were planned before any
Moving defendants also claim that any damages due to leaks
predating September 1, 2003, three years prior to the institution
of the present action, is time-barred.
Lastly, moving defendants contend that plaintiffs maintain
liability insurance but have refused to submit a claim to their
insurer. Motion, Ex. L.
Moving defendants declare that it would
be unjust to seek reimbursement from them rather than their
In opposition to this motion, plaintiffs again assert that the
doctrine of res ipsa loquitur demands a finding in their favor, the
same argument posited in opposition to motion sequence number 003.
Plaintiffs a l s o argue that, according to paragraph 4(d) of the
“In the event that the Lessee suffers loss or damage
f o r which Lessor would be liable, and Lessee carries
insurance which covers such loss or damage and such
insurance policy or policies contain a waiver of
subrogation against the Landlord, then in such
event Lessee releases Lessor from any liability with
respect to such l o s s or damage.”
Motion, Ex. F.
Plaintiffs’ position is that their insurance policy is excess
over that carried by the co-op for similar losses covered by both
policies and that they were unable to obtain insurance that waived
Plaintiffs also claim that their relocation was caused by
warped doors and chipping paint, which made it impossible to k e e p
the unit clean, and that extensive structural work needed to be
done to make the apartment safe.
James avers that he refused the check for $750.00 because it
was sent on condition that he sign a general release, which he
never agreed to do as part of the settlement.
James also states that he and his wife made t h e co-op aware of
building problems as soon as they became aware o them.
addition, plaintiffs have provided a statement of account from
their contractor indicating that all payments were made.
Lastly, plaintiffs challenge the allegation that they have
failed to provide any evidence as to the actual source of the leak.
Plaintiffs say that moving defendants’ own engineer, Joseph K. Blum
(Blum), wrote to Tenants Corp. in April of 2004 stating:
“We advised Jay Yablonsky back in February that the
penthouse roof needed to be replaced since it was
readily apparent that water permeated underneath t h e
various o l d roof membranes on the penthouse making
... ... . .
them no longer reliable. At the same time we believed
that the active leakage i n t o 9AB closet area was due to
the readily apparent ice damage to the thru-wall drain
scupper caused by the sub-zero winter weather. We did
not have direct knowledge that the general roof
condition was also causing leakage, which is now clear,
but advised Jay that the poor condition of the membrane
clearly represented a risk of leakage in the future.
At this time, w e are strongly of the opinion that the
recent ongoing wetness in the vicinity of the 9AB closet
areas is the result of water permeation of the penthouse
roof membranes. We do not believe the leakage is from
seepage through the masonry wall as there are no
observable deficiencies in these walls and there are
no historical precedents for this type of masonry
leakage in the many years we have been engineer for the
Based on the letter written by Blum more than a year prior to
the incident in question, plaintiffs maintain that moving
defendants were aware of the leakage problem to their unit caused
by a building problem and that they failed to rectify it.
In reply, moving defendants say that plaintiffs' objections
must be rejected as untimely, based on a stipulation between the
parties that answering papers "shall be served so as to be received
by the attorneys for t h e moving parties at or before 5 : O O PM on
J u l y 6 , 2011."
Reply, Ex. A.
Moving defendants' attorney affirms
that the opposition w a s not received until J u l y 8 , 2011, being
served on h i m by hand on that day.
Moving defendants declare that
plaintiffs have failed to make any excuse for the delay.
Regardless, moving defendants still assert that their motion
should be granted because plaintiffs have failed to show any
negligent act on their part that caused them damage and, for the
reasons noted above with respect to motion sequence number 003, the
doctrine of r e s ipsa loquitur is inapplicable to the facts of the
Moving defendants have provided a copy of a check made out to
plaintiffs in the sum of $11,590.00, dated March 29,
f o r the
work performed by plaintiffs’ contractor, but assert that
plaintiffs refused to accept t h e payment. Moreover, moving
defendants contend that this claim for work performed by
plaintiffs‘ contractor overlaps with plaintiffs‘ claim for building
repairs, since the work was performed to repair t h e problems
plaintiffs allege were building-wide, as indicated in plaintiffs‘
own exhibit 8 in opposition to this motion.
Moving defendants also say that they cannot be held
responsible for any damage to the renovated portions of plaintiffs’
apartment, since the w o r k recommended by Blum was performed and
there is no evidence of the actual cause of the leak.
Lastly, moving defendants reiterate their argument regarding
“The proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to eliminate any material issues of
fact from the case [internal quotation marks and citation
S a n t i a g o v F i l s t e i n , 35 AD3d 184, 185-186 ( l gDept
The burden then shifts to the motion’s opponent to ’‘present
evidentiary f a c t s in admissible f o r m sufficient to raise a genuine,
triable issue of fact.” Mazurek v Metropolitan Museum of A r t , 27
AD3d 227, 228 ( l o Dept 2006); see Zuckerrnan v C i t y of New Y o r k , 49
NY2d 557, 562 (1980). If there is any doubt as to the existence of
a triable fact, the motion f o r summary judgment must be denied.
See Rotuba Extruders, I n c . v Ceppos, 46 NY2d 223, 2 3 1 (1978).
“As a general r u l e , a party does not carry its burden in
moving for summary judgment by pointing to gaps in its o p p o n e n t . ’ s
proof, but must affirmatively demonstrate t h e merit of its claim or
defense [internal quotation marks and citation omitted] . ”
C a l d e r o n e v Town of C o r t l a n d t , 15 AD3d 602, 602-603 (2d Dept 2005);
V e l a s q u e z v Gornez, 4 4 AD3d 649 (2d Dept 2007).
Based on the
evidence and arguments presented, the court finds that Zash has not
met this burden and, therefore, h e r summary judgment motion (motion
sequence number 003) is denied.
In her deposition, Zash has admitted that she was aware of
having a leaky faucet in her bathtub and, as a result of that leaky
faucet, water dripped a n d accumulated in h e r tub.
In h e r e-mail to
another resident in the building, Zaah o p i n e d that the cause of the
leak in plaintiffs’ apartment was her leaky faucet that caused a
back-up in the pipes in the walls.
F u r t h e r , several weeks p r i o r to
the incident in question, Zash informed Alvarado o t h e problem
with the faucet and w a s told to contact a plumber; there is no
evidence that Zash did contact a plumber to solve t h e problem.
As the owner of a co-operative unit, Zash has an obligation to
maintain her unit in a reasonably safe condition so as n o t to cause
damage to other units or the building as a whole.
G o l d e n v Manhasset C o n d o m i n i u m , 2 AD3d 345 ( I R t
Dept 2 0 0 3 ) .
defeat Zash’s motion for summary judgment, it is enough for
plaintiffs to show facts and conditions from which t h e negligence
of Zash (or the moving defendants) may be reasonably inferred.
Bernstein v C i t y of N e w Y o r k , 69 w 2 d 1020 (1987).
As indicated above, enough facts have been presented so as to
raise a question as to Zash‘s leaky faucet being the cause of the
damage to plaintiffs’ apartment, and these facts have not been
completely rebutted by Zash.
Therefore, Zash‘s motion must be
For the reasons stated above, that portion of moving
defendants’ motion (motion sequence number 004) seeking to dismiss
the f i r s t and second causes of action asserted as against Tenants
Corp. for negligence is d e n i e d .
The exact cause of the l,eak is unknown; however, some evidence
had been presented that the cause may have been the internal water
p i p e s beneath Zash’s apartment, for which Tenants C o r p . would be
responsible, or t h e membranes on the roof above Zash’s apartment,
which previously caused flooding to plaintiffs’ unit.
since “[tlhere is evidence in the record that the defendant[s] made
repairs [to the roof’s membranes] in an attempt to cure the
problems[,] [wlhether its efforts were sufficient constitutes a
triable issue of fact for the jury to determine.” 3 4 - 3 5 t h C o r p . v
1-10 Industry Associates, L L C . 16 AD3d 579, 580 (2d Dept 2005).
Based on the foregoing, the court cannot conclude that Tenants
Corp. would not be responsible for repairing plaintiffs' apartment,
the third cause of action, if Tenants Corp. were to be found
negligent and such negligence necessitated plaintiffs' repairs.
Hence, that portion of moving defendants',motion seeking to dismiss
the third cause of action is denied.
The court finds plaintiffs' arguments regarding the doctrine
of res ipsa loquitur to be inapplicable to the case at bar, since,
as indicated above, the cause of t h e leak is undetermined and,
therefore, could not be said to be within the exclusive control of
either zash or moving defendants.
See Morejon v R a i s Construction
Co., 7 NY3d 203 (2006).
Similarly, that branch of moving defendants' motion seeking to
dismiss the fourth cause of action for breach of the warranty o
habitability, and the sixth cause of action f o r plaintiffs' costa
in relocating caused by the alleged breach of the warranty of
habitability, is denied.
A warranty of habitability mandates
"first, that the premises are fit for human habitation;
second, that the condition of the premises is in accord
with the uses reasonably intended by the parties; and,
third, that the tenants are not subjected to any
conditions endangering or detrimental to their life,
health or s a f e t y . "
P a r k West Management Corp. v M i t c h e l l , 4 7 N Y 2 d 316, 3 2 5 , cert
d e n i e d 4 4 4 US 992 (1979). Further, the warranty of habitability
applies to co-operative shareholder-tenants. F r i s c h v B e l l m a x - c
Management, Inc., 190 AD2d 383 ( l s t
However, it remains a question of fact as to whether the
conditions in the unit were so severe t h a t a reasonable person
would find that the warranty of habitability had been breached.
P a r k West Management Corp. v M i t c h e l l , s u p r a at 3 2 9 ;
see a l s o B i r c h
v R y a n , 281 AD2d 786 ( 3 d Dept 2001); Molloy v Li, 235 AD2d 342
Dept 1997). This finding would a l s o affect whether plaintiffs are
entitled to damages f o r the costs t h e y incurred in residing
elsewhere during the p e r i o d of reconstruction.
Consequently, the court cannot dismiss the fourth and sixth
causes of action at this time.
That branch of moving defendants' motion seeking to dismiss
the fifth cayse of action based on a stipulation of settlement of a
previous action is granted.
Not only is the underlying matter time-barred, based on
alleged negligence occurring more than three years prior to the
institution of the present case (CPLR 214), but evidence has been
presented that, at l e a s t twice, moving defendants tendered a check
in settlement of that issue but plaintiffs refused payment.
court finds that plaintiffs' argument, that they did not realize
that their stipulation of settlement involved their signing a
release, is both specious and unperauasive.
Lastly, the branch of moving defendants' motion seeking to
dismiss t h e seventh cause of action asserted as against them for
reimbursement for fees paid by plaintiffs to contractors for
building remediation is denied.
A question of fact exists as to
whether the work was performed at the request of moving defendants
for repairs for which they are obligated, or whether the work was
performed as part of the general renovation of plaintiffs‘
Based on the foregoing, it is hereby
ORDERED that defendant Jane Zash‘s motion for summary judgment
(motion sequence number 003) is denied; and it is f u r t h e r
ORDERED that the branch of defendants 9 l S L Street Tenants
Corp.’s and Wavecrest Management Team, Ltd.’s motion for summary
judgment (motion ~equencenumber 004) seeking to dismiss the fifth
cause of action asserted as against them is granted and the fifth
cause of action is dismissed; and it is further
ORDERED that the remainder of 9 1 n t Street Tenants Corp.‘e and
Wavecrest Management Team Ltd.’s motion for summary judgment
(motion sequence number 004) iB denied.