Gorman v 15-161 Owners Corp.

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Gorman v 15-161 Owners Corp. 2012 NY Slip Op 32105(U) August 6, 2012 Sup Ct, NY County Docket Number: 110782-2011 Judge: Eileen A. Rakower 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. I N 81912012 [* 1] 4 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY H ~ Me. i m u A. RAUCM% PRESENT: Justlce Index Number. 110782/2011 GORMAN, KAREN vs 151-161 OWNERS CORP INDEX NO. MOTION DATE MOTION SEQ.NO. SEQUENCE NUMBER : 001 SUMMARY JUDGMENT -, were read on thls rnotlon tolfor Notlce of MotIonlOrder to Show Cause - Affldavlb - Exhlblts The following papem, numbered Ito IN O W . INo(4. INo(s). Answering Affldavlts - ExhlblCs Replying Affldavib r,2 Upon the foregolng papers, It is ordered that this motlon IC FILED AUG 0 9 2012 NEW YORK Dated: I. CHECK ONE: ..................................................................... J.S.C. CASE DISPOSED .......................... .MOTION IS: GRANTED 0DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. DO NOT POST 0GRANTED IN PART 0OTHER 0SUBMIT ORDER nFIDUCI ARYAPPOINTMENT REFERENCE [* 2] Plaintiff, Index No. 110782-2011 -V- DECISION and ORDER 151-161 OWNERS COW. AND GERARJI J. PICAS0 INC., I E Motion Seq. 001 Plaintiff brings this action to recover damages that occurred as a result of a plumbing incident in her apartment, located at 15 1- 161 West 86* Street. Plaintiff is a shareholder in 151-161 West 86* Street, New York, NY,and has signed a Proprietary Lease with 151- 161 Owners Corp, the owners and operators of the building. On April 16, 20 11, Plaintiff and her husband discovered that plumbing within the walls of the apartment building caused human excrement to flow into their apartment. Human excrement was found on the floor, carpets and furniture in the apartment. As a result, Plaintiff and her husband both,had to live with friends, family, in their home in East Hampton, and in hotels until May 14, 20 11. Plaintiff caused and paid for all repairs. Plaintiff now brings this motion for summary judgment pursuant to CPLR $3212 on the fourth and fifth counts of her Complaint for breach of contract and breach of warranty of habitability. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. 'Where the proponent makes such a showing, the burden shifts to the 1 [* 3] party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. Ct of iy New York, 49 N.Y.2d 557 [ 19803). In addition, bald, conclusory allegations, even if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [ 19701). (Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249, 251-252 [ 1st Dept. 19893). The affirmation of counsel alone is not sufficient to satisfy this requirement. (Zuckerman, supra). Plaintiffs fourth cause of action alleges breach of contract. The elements of a cause of action for breach of contract are : the existence of a contract, performance by plaitniff, the breach by defendant, and resulting damages. (See, Harris v. Seward Parking House Corp., 79 AD3d 425 [ lstDept 2010J). In order to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based. (Sud v. Sud, 21 1 AD2d 423, 621 NYS2d 37 [l Dept 19951). Plaintiff provides a copy of the Proprietary Lease entered into between the parties. Plaintiff sets out the provisions upon which the claim is based: Paragraph 2: the Lessor shall at its expense keep the apartment in good repair, including all apartments... except those portions of the maintenance and repair of which are expressly stated to be the responsibility of the Lessee pursuant to Paragraph 18 hereof. Paragraph 3 : the Lessor shall maintain and manage the building as a first class apartment building. Paragraph 4(a): If the apartment or the means of access thereto or the building shall be damaged by fire or other cause covered by multiperil policies commonly carried by cooperative corporations in New York City.... the Lessor shall at its own cost and expense, with reasonable dispatch after receipt of notice of said damage, repair or replace or cause to be repaired or replaced with materials of a kind and quality then customary in buildings of the type of the building, the building, the apartment, and the means of access thereto, including the walls, floors, ceilings, pipes, wiring and conduits in the apartment. 2 [* 4] Paragraph 18(a): The Lessee shall ... not be responsible for the maintenance, repair, and replacement of. .. pipes or conduits within the walls, ceilings or floors ... ,? Plaintiff contends that Owners Corp. breached the contract in not paying for the repair of the apartment and items inside the apartment. Plaintiff annexes invoices evidencing the cost of repair to the apartment in the amount of $23,363.59. Plaintiff attaches emails written by Susan Sullivan, the President of Owners Corp., which states, since the Waste Stack was within the walls- it is a corporation responsibility. The managing agent is responsible for dealing with this type of event. She also provides emails sent by Ken Ryan, the representative of Picaso Inc., the apartment s management, admitting that this was a Corporate Infrastructure failure, and that they would cut a check to Plaintiff. In response to Plaintiffs breach of contract argument, Defendant provides evidence that it offered to reimburse Plaintiff for certain expenses, but Plaintiff rejected the offer. Specifically, Defendant attaches an email whereby Ken Ryan writes to Plaintiff, Will you settle this matter and be happy if the Board is willing to pay your contractor $7000, the cleaning service $6925, and for the floor $6454. Plaintiff rejected the offer and according to Defendant, sought additional sums which the cooperative is simply not responsible for according to the Proprietary Lease. Defendant points out that pursuant to Paragraphs 2 , 3 , 4 and 18(a) of the Proprietary Lease, the Cooperative is not responsible for the repair or replacement of furniture, carpeting, area rugs, furnishings, decorations, painting and wallpapering . Moreover, Defendant disputes that the invoices provided by Plaintiff are accurate. Specifically, Defendant states that one of the contractors hired by plaintiff, Interior Done Wright, presented two different invoices with different monetary amounts owed; the first being $7,570, and the second being $9,050. Plaintiff also moves for summary judgment on its fifth cause of action for breach of the covenant of habitability. Section 235-b of the Real Property Law requires a landlord to impliedly warrant: 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 safety. (See, Park West Management Corp. V. Arthur Mitchel, et. al., 47 NY2d 325,418 NYS2d 3 10, 3 [* 5] 391 NE2d 1288 [ 19791). A breach of the implied warranty of habitability occurs where in the eyes of a reasonable person, defects in the dwelling deprive the tenant of those essential functions which a residence is expected to provide. Id. At 328. A housing or sanitation code violation is relevant but not determinative of a breach of warranty. (See, Park West Management Corp. V. Mitchell, 47 NY2d 316,418 NYS2d 310,391 NE2d 1288 [1979]). It is uncontested that, by reason of the plumbing failure on April 16,20 11, the Apartment was not habitable for an extended period of time. In support of Plaintiffs motion for summary judgment, she provides Paragraph 4(b) of the Proprietary Lease which states, In case the damage.,. shall be so extensive as to render the apartment untenantable.. .. the rent hereunder shall proportionately abate until the apartment shall again be rendered wholly tenantable. Although Plaintiff does not provide any rent checks or other indications of how much she pays in rent on a monthly basis, she states that daily rent for the apartment is $42.67, and therefore she asserts that the proper abatement of rent is $1,152.09 for the 27 days she was not living there. Additionally, Plaintiff provides receipts for the cost of commuting to East Hampton, and staying in a hotel for one night, in the total amount of $1,1227.08. Plaintiff alleges that she is owed $25,642.76 in total for breach of habitability casts. In opposition, Defendant admits that there was human excrement found in Plaintiffs apartment but provides an affidavit of Susan Sullivan s which states that the Cooperative worked with Plaintiff on a daily basis and offered a maintenance abatement, but Plaintiff rejected the offer. Plaintiff has sufficiently proven that she is entitled to summary judgment as to the issue of liability on the fourth and fifth causes of action. Defendants do not raise an issue of fact as to liability. As such, Plaintiffs motion for summary judgment is granted on the issue of liability only. Wherefore, it is hereby, ORDERED that Plaintiffs motion for summary judgment is granted on the fourth and fifth causes of action on the issue of liability only, and the issue of damages shall be determined at the time of trial of the remainder of the action. 4 [* 6] c This constitutes the decision and order of the court. All other relief requested is denied. t Dated: August 6,2012 EILEEN A. R, J.S.C. NEW Y O H K COUNW CLEHK'S OFFICE 5

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