Queens Unit Venture, LLC v Tyson Court Owners Corp.
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Queens Unit Venture, LLC v Tyson Court Owners Corp. 2012 NY Slip Op 32226(U) August 17, 2012 Supreme Court, New York County Docket Number: 111568/11 Judge: Louis B. York 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. .. . SCANNED ON 812712012 [* 1] J L a SUPREME COURT OF JHE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY fl PART& Justiae / / MOTION DATE -v- _. MOTION sea. NO. MOTION CAL. NO. 1 U Notlcm of Motion/ Order to Show Cause Anrwmrlng Affldavttr c wmn r o d on thls motlon to/for T r fonowlng papan, numbmrmd 1 to h U - Amdsvltr - Exhlbks ... - Exhlblts Replying Affidavitr Cross-Motion: Yes 0 No Upon the forsgolng papers, I Ir ordermd that thlr motlon t Check one: FINAL DlSPQSlTlON Check if appropriate: p DO NOT POST SUBMIT ORDER/ JUDG. NON-FINAL DISPOSITION REFERENCE 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW Y O U COUNTY OF NEW Y O N QUEENS UNIT VENTURE, LLC, Index NO. 11 1568-2011 Plaintiff, -against- TYSON COURT OWNERS CORP. and ALL AREA REALTY SERVICES, INC., Defendants, YO=, FILED J.: NMYOW C&R)CB -E Defendant Tyson Court Owners Corp. ( TCOC ) moves, by notice of motiw dated June 12,2012, to renew/reargue, pursuant to CPLR 2221,6301 and 63 13(a), its opposition to plaintiffs motion for summary judgment, panted in the order and decision of this court dated May 18,2012. Plaintiff Queens Unit Venture ( QW ) opposles the motion aad cross-moves, by order to shQwcause dated June 27,2012, to reargue, pursuant to CPLR 2221(d), its prior motion for summary judgment to set up a hearing on damages. Defendant All Area Realty Services, Inc. C AU kea )supports TCOC s motion and opposed that of QW. BACKGROUND TCOC owns the residential cooperative building located at 5 North Tyson Avenue, Floral Park, New York (the Building ). All Area is the Building s managing agent. The sponsor of the cooperative conversion of the Building, Thomas John (the Sponsor ), pledged 1,556 TCOC shares (the Shares ) as security for a $2.3 million bank loan from Bank Leumi, which wm later [* 3] assigned to plaintiff. The Shares are allocated to units A2,A5, B1, B3, C1, C2 and CS in the Building. The Sponsor eventually defaulted on the loan, and plaintiff purchased the Shares at the foreclosure sale. Plaintiff commenced the instant action on October 12,2011, asserting causes of action for a declaratory judgment on the status of the Shares, tortious interference with contract and attorney's fees. The complaint alleges that All Area has not approved plaintiff's purchase of the Shares and TCOC has refused to permit transfer of the shares to plaintiff. The claim for tortious interference with contract is based on All Area's allegedly unlawful collection of monthly rents f o tenants and refusal to remit them to Q since September 1,2010, when Q acquired rm W W the Sponsor's loan from Bank Leumi. On January 11,2012 plaintiff moved far summary judgment on its three causes of action. TCOC opposed the motion by the attorney affirmation of Robert L. Gordon, signed Jwuary 30, i 2012. All Area opposed Q W ' s motion and cross-moved for summary judgment on February 23, 2012. On March 12, 2012 TCOC subslitted an attorney affirmmation in support of All Area's motion. It attached to the affirmation three affidavits from residents of the Building in which they asserted that Units C-1 and C-5 had been occupied far several years by members of the Sponsor's family. These allegations, if true, would undermine plaintiffs claim that shares appurtenant to these u i s were unsold. In a letter to the court dated March 22, 2012, plaintiff nt characterized the March 12 submission as an impermissible sur-reply to its motion for wmmary judgment and asked the court to reject them. At the oral hearing, QVV repeated its request, and it was granted. The affidavits were not considered on plaintiff's motion for summary judgment. By Judgment and Order dated May 18,2012, this court declared that QUV's shares are unsold shares and ordered All Area to issue and deliver share certificates and proprietary leases 2 ' . ,- - [* 4] h A( attributed to the units within 14 days of receipt of the order. The Decision d m not mention the remittance of rents for the p e r i d starting on September 1,2010. Q requests clarification of W the Decision and a hearing to determine damage3 due to defendants refusal to acknowledge QW s ownership of the shares appurtenant to the units. Defendant TCOC asks for the modification of the order to correct erroneous references to Unit C-3 rather than to Unit C-5. This issue was resolved by attorney stipulation. On its motion to renew, TCOC requests that the three affidavits previously rejected were accepted as providing new facts. Upon renewal, it urges this court to vacate its previous decision wt respect to Units ih DISCUSSION Defendant s motion for renewal CPLR 222 1(e) provides that a motion for lewe to renew shall be based upon new facts not offered on the prior motion that would chaage the prior determination ...and shall contain reasonable justification for the failure to present such fwts on the prior motion. The new facts defendant TCOC tries to introduce are contained in three affidavits f o residents ofthe rm BIlilding who testified that the Sponsor used units C1 atld C5 as residences for members of& family. This information is new in the sense that it was not considered on plaintiffs motion for summary judgment. TCOC is correct that if the sponsor s family lived in the two apartments, the shares a&ched to it would lose their character as unsold shares by the terms of paragraph 38(& of the proprietary lease: %e shares of the Lessor which were issued to the Lessor s grantor(s) or individuals produced by the Lessor s grantor(s) pursuant to the Plan of cooperative organization of Lessor or to a nominee or designee of such grantor(s) or individual(s); and, all shares which are Unsold Shares retain their charaGttsr as 3 [* 5] such (regardless of transfer) until (1) such shares become the property of a purchaser for bona fide occupancy (by himself or a member of his family) of the I Apartment to which such shares are allocated, or (2) the holder of such shares {or a member of his family) become a bona fide occupant of the apartment. This Paragraph 38 shall become inoperative as to this Lease upon the occurrence of either of said events with respect to the Unsold shares held by the Lessee named herein or his assignee. TCOC argues that it has a reasonable justification why it failed to submit the three affidavits in its original opposition. Plaintiffs motion for summary judgment was made before discovery in this action, and it took defendant some time to locate persons who knew about the sponsor s use of the apartments in question. Plaintiff s claim that the affidavits were available six weeks prior to oral arguments on the motion (Pl. Memo Opp., P.2) does not address the reassons why they were rejected at that time. Q further remarked that if TCOC needed W PP. additional time to complete its investigation, it should have sought an adjournment (id., 7-8). n court agrees that TCOC s handling of the matter could benefit fiom better planning. 8 However, even if TCOC does not have an impeccable explanation for its untirnely submission of the affidavits, its failure can be excused. , The First Department ha$ emphasized i a number of c a t s that courts have flexibility in n treating the requirements of CPLR 222 1(e). While it is true that a motion for leave to renew is intended to direct the court s attention to new or additiosal facts which, although in existence at the time tbe original motion was made,were unknown to the movant and were, therefore, not brought to the court s attention, the rule is not inflexible and the court, in its discretion, may grant renewal, in the interest of justice, upon facts known to the movant at the time of the original motion. Indeed, this C u t has held that even if or 4 [* 6] the rigorous requirements for renewal are not satisfied, such relief may still be granted so as not to defeat substantive fairness. o Santa Pe Ass'n v ,n 20071 (citing V 36 AD3d 460,461; 829 M.Y.S.2d 39 [lst Dept 'mer. 306 A.D.2d 209,210,761 N.Y.S.2d657 [lst Dept 20031; Comtr, Corn. ofN.Y, v, City of N& 280A,Q.2d374,377,720N.Y.S,2d487 [lst Dept 20011 ). See, also, .. ' 307 AD2d 870,871; 763 N.Y.S.2d 61 1 [lst Dept 20031; m w v Timc Out H & F i m 78 AD3d 619; 912 N.Y.S.2d 194 [lst Dapt 20101 e w @oviding the rationale for such flexibility in the strong judicial policy that favors determination of actions on the merits). Plaintiff does not dispute the informatian contained i the three affidavits. It does not n deny that the Sponsor used the.two apartments for his own purposes. Instead, it argues that the affidavitsare conclusory, self-serving and unsubstantiated. As minimal as the affidavits are, they are sworn statements from individuals wt peaonal knowkedge of the matter, and raise a factual ih nt issue that prevents a grant of summary judgment to plaintiff in relation to u i s C 1 aad C5. In the interest of justice, this court will exercise its discretion, and grant the ddendant's motion for leave to renew. Upon renewal, the prior order of this court dated M y 18,2012 is a modified to exclude the two units from its coverage. The issue of whether the units were used by the Sponsor is to be resolved at trial. Plaintiff's motion to reargue A motion for reargument is addressed to the sound discretion of the court, and is designed to give parties a chance to convince the court that relevant facts or law were overlooked or misapprehended (CPLR 2221(d) (2); Foler v, RmhG 68 AD2d 558,567,418 6 [* 7] N.Y.S.2d 588, 593 [lmt Dep t 19791). Q W noted that the May 18 order did not resolve the issue of its entitlement to rents f o the apartments that served as a security for the loan from Bank rm kumi, its predecessor in interest, Thomas John assigned rents f o these apartments to Leumi, rm and BS a holder of John s debt, plaintiff stepped into the shoes of the bank. QUV has the right to rents as an owner of shares that this court declared belong to it. The amount due will be detmnined at the trial of this action,, CONCLUSION For the foregoing reasons, it is ORDERED that defendant TCOC s motion to renew is granted; and it is M e r ORDERED that upon renewal, the order of this court dated May 18,2012 is modified to deny plaintiffs motion for summary judgment with respect to d t s C1 and C5; and it is further ORDERED that plaintiff s motion to reargue is granted and the hearing on the amounts due to plaintiff in rents shall be determinedat trial; and it is further ORDERED that by a so-ordered stipulation all references to Unit C3 in the initial order are replaced by references to nit C5. FILED 21a 2 ENTER:
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