Bridgers v West 82nd St. Owners Corp.

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Bridgers v West 82nd St. Owners Corp. 2012 NY Slip Op 32123(U) July 27, 2012 Supreme Court, New York County Docket Number: 112204/07 Judge: Joan A. Madden 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY p -%w b . PRESENT: I/\ L b (I PART t Justice - Index Number : 112204/2007 - INDEX NO. BRIDGERS, DARREL vs. WEST 82ND STREET OWNERS SEQUENCE NUMBER : 010 MOTION DATE MOTION SEQ. NO. - OTHER RELIEFS The following papem, numbered 1 to Notlce of MotlonlOrder to Show Cause - Exhibits Answsrlng Affldavib , were read on thle motion toflor - Affidavib - Exhibits INo(8). IWd. INom. Ropiying Affldavib Upon the foregging papers, It Is ordered that thla motlon la bL-lru%tb b ~ t * ~ f L Dc L l 5 l U , , h Of j- & i L !I u C 6 L i J r& r k C bc i b- T& & ( a , NEW YORK COUNTy CLERKS OFFICE J.S.C. I CHECK ONE. ..................................................................... . &ASE ........................... MOTION 1s: GRANTED 0DENIED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: 3. NON-FINAL DISPOSITION DISPOSED 1 DO NOT POST 0GRANTED IN PART r]OTHER 0SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK - - PART 11 NEW YORK COUNTY DARRELL BRIDGERS and FRANCA FERRARI-BRIDGERS, Index No.: 112204/07 Plaintiffs, - against - DECISION/ORDER WEST 82ND STREET OWNERS CORP., GREGORY PINKUS, RALPH PREISS, JENNIFER WAGNER, and CAROLE FERRARA ASSOCIATES INC., Defendants. A 60 U1m MADDEN, JOAN A . , J.: Plaintiffs move ( s e q . no. 10) f o r the recusal of the Honorable Richard F. Braun from presiding over this action, and for sanctions against defendants' counsel for alleged perjury. The branch of the motion seeking recusal is denied as moot. By order dated October 11, 2011, Judge Braun recused himself and the case was reassigned. The branch of t h e motion seeking sanctions is also denied, on the merits. P l a i n t i f f s seek sanctions based on alleged perjurious statements made by defendants' attorney, Diane D e l Sordo, in her affirmation submitted in another pending motion in this case, as well as in her affirmation submitted in opposition to the instant motion. Plaintiffs a l s o claim that Brendan Fitzpatrick, another attorney for defendants, made p e r j u r i o u s statements in an affirmation submitted to the court during appellate proceedings in the related matter, B r i d g e r s v Wagner [* 3] (Index No.114416/08); that Don-party Christofer Wagner perjured himself when he stated under oath that he did not do unauthorized work in his apartment; and that defendant J e n n i f e r Wagner committed perjury in her affidavit submitted in another pending motion, when she stated that, based on information received by the Board, it logically concluded that plaintiffs' alterations were in violation of the lease. Under New York law, a person is guilty of perjury he "swears f a l s e l y . " P e n a l 5 210.05. ... when Perjury in the second degree, which plaintiffs allege here, occurs when a person "swears falsely and when his false statement is ( a ) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in t h e performance of his official functions, and (c) material to t h e action, proceeding or matter Involved." Penal Law § 210.10. As defined by the Penal Law, " [ a ] person 'swears falsely' when he intentionally makes a f a l s e statement which he does not believe to be true (a) while giving testimony, or (b) under o a t h in a subscribed written instrument." Penal Law 5 210.00. At the outset, the court notes that perjury is a criminal offense, and there is no record of any s u c h charges being pursued against defendants or their counsel. Nor could there be, as none of the alleged perjurious statements are, contrqry to plaintiffs' argument, demonstrably f a l s e , intentionally made to be false, or -2- [* 4] c believed to be false, or, for the most p a r t , material to the claims in this action. That plaintiffs disagree w i t h the statements, and believe that evidence shows them to be untrue, does n o t demonstrate that the statements are false, much less that they constitute criminal perjury. As an example of the alleged perjury of defendants' counsel, plaintiffs cite to an affirmation of Del Sordo, in which she a s s e r t s that plaintiffs admit not obtaining Board approval and admit to refusing an inspection of their apartment. As evidence of the falsity of these statements, plaintiffs submit a copy of a letter they sent to the Coop's attorney, dated November 23, 2006, in which they offer access to their apartment on the conditions t h a t no pictures be taken, that the managing agent not be present, and that the Board "reconfirm our w o r k . " ... that they authorized Under the circumstances of this case, in which the issue of whether the work done by plaintffs was authorized was in dispute, and which dispute was the reason defendants sought an inspection, the conditions imposed by plaintiffs were tantamount to a refusal. Similarly, plaintiffs argue that Del Sordo's statement, in her affirmation in opposition to the instant motion, t h a t "access came with the condition that before the inspection is conducted the Board authorize the work performed in their apartment," amounted to criminal perjury because the letter actually stated -3 - [* 5] c that the condition w a s that the Board "reconfirm its p r i o r statements'' that t h e work was authorized. Plaintiffs' assertion that they received prior approval is belied by the evidence in this case, but even if a dispute about that remained, plaintiffs'. argument that Del Sordo's statement amounts to criminal perjury strains credulity. Without needing to f u r t h e r address each instance of alleged perjury, the court finds t h a t there is no basis for imposing sanctions on defendants or their attorneys. Accordingly, it is ORDERED that plaintiffs' motion for recusal n denied. Dated: W nd sanctions is FILED o /a ENTER: n

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