Musey v 425 E. 86 Apts. Corp.

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Musey v 425 E. 86 Apts. Corp. 2017 NY Slip Op 30184(U) January 26, 2017 Supreme Court, New York County Docket Number: 157316/14 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 1] INDEX NO. 157316/2014 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 01/30/2017 l11 !i 11 I' SUPREME COURT OF THE STATE OF NEW YORK - PRESENT: NEW YORK COUNrfr r HON. PAUL WOOTEN PART 1, 7 Justice I : J. ARMAND MUSEY, Plaintiff, INDEX NO. MOTION SEQ. NO. -against- 157316/ft 002 I I. I I i 425 EAST 86 APARTMENTS CORP., DOUGLAS ELLIMAN PROPERTY MANAGEMENT, FRANK CHANEY, PATRICIA CARBON, DAVID MUNVES, MICHAEL CONSIDINE, SUZANNE KEANE a/k/a SUZANNE JULIG, JENNIFER KRUEGER, GEORGE GREENBERG, ALEXANDER SHAPIRO and LESLIE SPITALNICK, Defendants. The following papers were read on this motion and cross-motion by defendants to dismiss the complaint and cross-motion by the plaintiff for summary judgment. D PAPERS NUMBE · Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affidavits Reply Affidavits Cross-Motion: Exhibits (Memo),_ _ _ _ _ _ _ _ __ Exhibits (Memo),_ _ _ _ _ _ _ _ _ _ __ •Yes D I I ji I' 1· I I, ~I. No , Motion sequence numbers 002 and 003 are consolidated herein for disposttion. In sequence number 002, plaintiff J. Armand Musey (Musey) moves, pursuant to • IJ C~LR 1· 2221 and 3025(b), for an order granting leave to reargue portions of this Court's prior Deci~on I and Order dated July 16, 2015 (Prior Order) and to amend the complaint. Defendant 425· $est ,, 86 Apartments Corp. (the Co-op) cross-moves, pursuant to CPLR 2221(d), for an Order ' granting leave to reargue portions of the Prior Order, and, upon reargument, granting summary judgment in the Co-op's favor on the remaining branch of the fourth cause of actibn. In sequence number 003, the Co-op moves, pursuant to CPLR §§ 2304, 3101, and 3103, for an order quashing Subpoenas Duces Tecum issued to nonparty Shavelson, Neuman & Page 1 of 15 1 of 15 .;.:--..._, [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 2] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 I Company, LLP (Shavelson Neuman), the accounting firm retained by the Co-op, and non rty Standard Waterproofing Corp. (Standard Waterproofing), the roof repair company retaine of the Co-op's attorneys' fees incurred in connection with the instant motions. i I t' BACKGROUND i I I The relevant substantive and procedural history of this action has been fully set fot in I: the Prior Order, and will not be repeated here, except as is necessary for clarification. On February 27, 2013, Musey purchased the stock shares referable to apartment ~-A ! (the Apartment) and the adjacent terrace or roof space in the building located at 425 East Street in Manhattan (the Building). The Building is owned by the Co-op. Defendant Dougl s i Elliman Property (Douglas Elliman) is the Building property manager. The individually na defendants are shareholders in the Co-op, and present or former members of the Co-op B ard 1 I of Directors (Board), during the relevant time period. All claims asserted against the Boar: members and Douglas Elliman were dismissed by the Prior Order, leaving the Co-op as th~ sole defendant in this action. In this action, Musey alleges that, at the time of the negotiations for the sale of the j I shares appurtenant to the Apartment and at the closing, the Building's roof was undergoin substantial renovation and repair, and Musey's view of the terrace adjoining the Apartmentfias 1 entirely obstructed by the construction equipment and materials necessary for the roof rep ir. Musey also alleges that it was not safe for anyone, other than construction workers and 1, i I licenced professionals, to access the terrace. Musey alleges that the Board verbally assurfd :~ both his partner, nonparty Margaret Janicek (Janicek), and himself that, when the roof wor. " was completed, they would have a new terrace for their sole enjoyment and use. In June 2013, the Board contacted Musey, and advised him that it was drafting ne'A1 House Rules that would affect his plans for the roof space and terrace. Musey alleges tha~ Page 2of15 2 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 3] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 I: I I, pursuant to sections 7 and 10 of the Proprietary Lease (lease), the Co-op was required to I! deliver the terrace in a fonn consistent w~h Musey's intended use, an outdoor space for leiure and entertainment for Musey's exclusive use. Musey alleges that, on July 23, 2013, when ~he I roof construction crew cleared the equipment and materials from the terrace 1 Musey learn~ fj for the first time that the Co-op had not installed a surface appropriate for the use that he intended to make of the terrace, and that he would be required to pay for the installation ' I r· o~ i such surface. Musey alleges that such acts and omissions by the Board constitute breach~s ' of the lease. Musey also alleges that the Co-op breached the lease when it refused to rep~ce three exterior doors in the Apartment that open onto the terrace. Upon the Co-op's refusal to renovate the roof and replace the exterior doors, Muse~ i: commenced this action, asserting claims against the individual defendant Board member~ ~or i breach of fiduciary duty and fraud; against the Co-op for a judicial declaration that certain ! House Rules are null and void, that the terrace should have been delivered in a habitable I I ! f1 condition, and that three exterior doors should have been replaced; and against the Co-op land Douglas Elliman for breach of the lease. i Prior to joinder of issue, the Co-op, Douglas Elliman, and the individual defendants I: 1: i moved, and defendant Board member George Greenberg (Greenberg) cross-moved, to I. I dismiss the complaint on a variety of grounds, including statute of limitations, lack of standrg, failure to allege actionable tortious conduct against the individual defendants, lack of a fiduciary duty owed by the Board to Musey, and failure to state any legally viable cause of action. Musey cross-moved for summary judgment in his favor on the claims for a declaratory ,. judgment and breach of the lease asserted against the Co-op and Douglas Elliman. In the Prior Order, the Court granted and denied the motions in part. The Court granted the motions by the Co-op, Douglas Elliman, and the individual defendants, including Greenberg, to the extent that it dismissed all claims asserted against the individual defendants Page 3of15 3 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 4] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 on the ground that Musey failed to allege actionable tortious conduct by any of them. The i I: Court also dismissed in their entireties the first and second causes of action for breach of I; fiduciary duty and fraud asserted against the Co-op, on the grounds that those claims sho1d have been commenced pursuant to CPLR Article 78 and that they are time-barred pursuafi to i' the applicable four-month limitations period. Ii The Court granted summary judgment in favor of the Co-op on that branch of the t1rd cause of action for a judicial declaration that sections of the House Rules are null and void I! because they violate the terms of the lease relating to the ownership and use of the terra~, !: holding that branch of the claim to be time-barred. The Court denied summary judgment i~ favor of either the Co-op or Musey on that branch of the third cause of action for a judicial , . declaration that the Co-op is solely responsible for the replacement of three exterior doors , . ' I' leading from the Apartment to the terrace and on the fourth cause of action for breach of t~e ' lease provision of quiet enjoyment, holding that triable issues existed regarding whether t~ ,i 1. I, Co-op or Musey bears sole responsibility for replacement of the doors and for making the I I' terrace fit for its intended purpose. The Court also granted summary judgment in favor of 1: I Douglas Elliman, and dismissed all claims asserted against it, on the grounds that Dougla~; Elliman is not a party to the lease, and, therefore, cannot be held liable in its capacity as ; ! managing agent. Subsequently, in September 2016, Musey commenced a special proceeding purs~nt ! I to CPLR Article 78 against the Co-op (see Musey v 425 E. 86 Apts. Corp., Sup Ct, NY Co~nty, l Index No. 158014/2016). i DISCUSSION " I' I Motion Sequence Number 002 Musey and the Co-op each seek leave to reargue the prior motions for summary ' judgment on the branches of the third cause of action for a declaratory judgment regardinp Page 4of15 4 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 5] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 I RECEIVED NYSCEF: 01/30/2017 il !~ I who bears sole financial responsibility for installing a protective covering on the roof mem ane 'I i and for replacing three exterior doors and the fourth cause of action for breach of the leas provision of quiet enjoyment by failing to install an appropriate protective surface on the terrace. Musey contends that the Court misconstrued the claims, mistakenly characterizing them as untimely -mpts to challenge the House Rules. Musey contends that, instead, Ii 1 seeks to enforce the lease provisions which obligate the Co-op to provide him with exclush~ t access to a terrace protected by a surface which comports with its intended use. I In opposition, the Co-op contends that the Court did not misapprehend the facts relating to the terrace, and properly granted relief in favor of the Co-op regarding the Houi Rules. The Co-op also argues that the Court incorrectly denied summary judgment in the ~o op's favor on the branches of the third cause of action regarding the exterior doors and th+ fourth cause of action regarding breach of the lease, inasmuch as the Court found, in effe1, I, that the House Rules were enforceable. I Musey's motion for leave to reargue is denied. "A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided" (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979]; Belrose Fire Suppression, Inc. v Stack McWilliams, LLC, 51 AD3d 485, 485 [1st Dept 2008]; see CPLR 2221[d]). I fj ' ,, i Reargument does not "serve to provide a party an opportunity to advance arguments I'',, different from those tendered on the original application. It may not be employed as a devF for the unsuccessful party to assume a different position inconsistent with that taken on th~ I original motion" (Foley v Roche, 68 AD2d at 567-568). I In granting summary judgment in favor of the Co-op on the branch of the third cau. of Page 5of15 I· i l; ! 5 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 6] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 I! action for a declaration relating to the terrace, the Court reviewed the relevant portions of t~e 11 I~" complaint, the lease terms, the House Rules, and the Co-op's previous course of conduct. i, the complaint, Musey seeks a declaration that the Co-op bears sole responsibility for I t renovating the adjacent terrace in order to make it habitable. The lease provides that the lessee of a penthouse with an adjacent roof or terrace "shall have and enjoy the exclusive l!lse I of' that space, subject to regulations prescribed by the Board "from time to time" (lease§,. The House Rules prescribed by the Board and incorporated into the lease at section 13, w~en read as a whole, provide that all costs incurred in protecting the roof membrane installed b~ ~: the Co-op are the sole responsibility of the lessee. The Court also reviewed the use madeipf the terraces by the previous lessee of the Apartment and by Greenberg, the only other les~e 1 of a penthouse apartment with an adjacent terrace, noting that, when Greenberg upgrade9; that terrace in 1990, he did so at his own expe.nse and pursuant to an agreement with the ~o- ' op. The Court held that "[i]t is only plaintiffs reading of the proprietary lease that would I; I oblige [the Co-op] to favor him as it has no other owner. The Court can~ot declare adher'ce I.: to an agreement that does not exist" (Prior Order at 9). The Court also held that granting ~e I declaratory relief sought in the third cause of action relating to the terrace would require I. I voiding the House Rules that pertain to the terrace use and maintenance obligations of th,dCo' op and each shareholder. The Court held that any challenge to the House Rules "must bel: i undertaken by an Article 78 proceeding," granted the Co-op's motion in part, and dismisse- ' that branch of the third cause of action for a declaration regarding financial responsibility f~r roof and terrace renovations as time-barred. Musey has failed to demonstrate that the Court misapprehended the facts set forthiln the prior motions. The law and documents are clear and unambiguous with regard to the I I terrace adjacent to each penthouse apartment. The lease terms are governed by the Houle ,. Page 6of15 6 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 7] NYSCEF DOC. NO. 197 1~. INDEX NO. 157316/2014 ll RECEIVED NYSCEF: 01/30/2017 I 11 I Ii I• I· I Rules, which provide that the lessee bears sole financial responsibility for protecting the rof t; membrane from the consequences of the lessee's use of the terrace. I 1 Musey's reliance on Shapiro v 350 E. 78th St. Tenants Corp. (85 AD3d 601 [1st D t 1 2011]) is misplaced. The lease at issue in Shapiro provided, in relevant part, that "'the Le ee f:': [., shall have and enjoy the exclusive use of the ... roof and/or that portion of the roof I' appurtenant to the penthouse, subject to the applicable portions of this lease"' (id. at 601). /:· ·. 11 Similarly, here, the lease provides that Musey "shall have and enjoy the exclusive use of t~ terrace or balcony or that portion of the roof appurtenant to the penthouse, subject to the , I· I' applicable provisions of this Lease" (lease§ 7). Significantly, however, unlike the Shapiro lease, the lease here provides that such ,se I is subject to regulations prescribed by the Board from time to time (see id.). As discussed!! I above, the Board prescribed regulations that directly affect Musey's use of the terrace, by requiring him, as the lessee of an apartment with an adjoining roof space, to pay for the Ii' renovations to render that space fit for the use Musey envisioned. ,:· The Shapiro decision is also distinguishable on the ground that the Shapiro plainti~; had Ii planters, with the defendant board of director's approval, and removed them upon the req~st covered the roof space adjacent to her apartment with wooden decking, furniture, and of the board in order to facilitate the inspection of, and repairs to, the roof below her decki~.:g (see id.). Once the decking was removed, a qualified expert determined that the roof was/ ,oot 1 structurally sound, and could not withstand the weight of the materials previously installedl~Y the plaintiff (see id. at 602). The defendant then banned the plaintiff from walking on the tot (see id.). The Court concluded that the defendant improperly failed to repair the roof to etble the plaintiff to use it as she had before, and that such failure deprived the plaintiff of her q~iet l enjoyment of the roof (see id. at 602-603). · i Here, Musey contends that the Co-op refused to protect the roof membrane in suf a Page 7of15 7 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 8] r INDEX NO. 157316/2014 i RECEIVED NYSCEF: 01/30/2017 NYSCEF DOC. NO. 197 ! I i, ,, 1: I way as to permit Musey to use the roof as an entertainment terrace space. Significantly, I' however, Musey does not contend that he previously used the roof space as a terrace, tha,!he removed his property from the roof at the Co-op's request, or that the Co-op banned him . f~m !. renovating the roof space. Therefore, the Shapiro decision does not apply here. For the foregoing reasons, that branch of Musey's motion for leave to reargue is :· denied. i I I That branch of the Co-op's cross motion for leave to reargue is granted in part and I' denied in part. Reargument is granted on that branch of the Co-op's prior motion for sum~ary : judgment on that branch of the fourth cause of action for breach of the lease provision of tiet enjoyment, and, upon reargument, summary judgment on that branch is granted in favor cf the I I, i Co-op. t As discussed above, the House Rules are expressly incorporated into the lease, arjd I, i the lease terms are expressly made "subject to" those Rules {see lease§§ 7, 13). Togetitr. I the lease and the House Rules operate to contractually obligate Musey, as a penthouse :· apartment lessee, to pay for the renovation of the roof space into a terrace space usable f> an I I entertainment area. In the Prior Order, the Court determined that any challenge to the H~se i Rules must be made in a CPLR Article 78 special proceeding, and that any such challeng. made in the instant action are untimely. For these reasons, the House Rules remain in fu. force and effect, and govern any disputes between Musey and the Co-op regarding I reno~tion and use of the roof space. For the Court to grant the relief Musey seeks in the fourth cause of action, it woulq;be I ! forced to disregard the plain meaning of the relevant lease terms and the House Rules arjti, i instead, rewrite them. "[A] court should not rewrite the terms of an agreement under the 'uise of interpretation" {FC/ Group, Inc. v City of New York, 54 AD3d 171, 177 (1st Dept 2008] I· i [internal quotation marks and citation omitted]). Page 8of15 8 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 9] INDEX NO. 157316/2014 I RECEIVED NYSCEF: 01/30/2017 I " NYSCEF DOC. NO. 197 ~ I: Reargument is denied on that branch of the Co-op's prior motion for summary judgment on that branch of the third cause of action for a declaration regarding who bears he I financial responsibility for replacing the three exterior doors leading from the Apartment to ~e I ,, I terrace space. In the Prior Order, the Court denied summary judgment in favor of either Musey or ~he I, I! Co-op on that claim, holding that the issue of who bears financial responsibility for the ii replacement of the exterior doors is fact sensitive. The Court noted that the Co-op volunt~ily I agreed to replace one of the three doors, at its own expense. The Court held that the Apartment's prior owner's replacement of the doors, at her own expense, might have converted them into the personal property of that shareholder and all her successors in I• i interest, including Musey. The Co-op has not demonstrated that the Court has misapplie~l~he relevant law or misapprehended or overlooked the relevant facts with regard to that bran, of I the prior motion. Next, Musey seeks leave to amend the complaint to further define the claims previ~usly I.' asserted and to add claims against the Co-op for breach of contract, breach of the implie1! . I I: warranty of habitability, declaratory relief, and injunctive relief. In opposition, the Co-op ,! contends that portions of the proposed amended complaint are barred by the doctrine of l~w of the case, and that, even deeming the facts alleged in the proposed pleading to be true, proposed claims do not state any cognizable cause of action. th~ i Ii I Leave to amend the complaint is denied. While leave to amend a pleading must ~ freely granted, "(w]here the proposed amended pleading is palpably insufficient or patentl1 I devoid of merit, or where the delay in seeking the amendment would cause prejudice or /: surprise, the motion for leave to amend should be denied" (Lucido v Mancuso, 49 AD3d ilto, 1: 229 [2d Dept 2008]; Silver v Murray House Owners Corp., 126 AD3d 655, 656 [1st Dept *'115]; I !. see CPLR 3025 [b]). Page 9of15 I 1 I I· I I I I 9 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 10] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 11 In the proposed breach of contract claim, Musey alleges that, on February 27, 201f he ! and the C0-<>p entered into a valid contract, the lease for the "untt," consisting of the 1 11 Apartment and the appurtenant terrace. Musey alleges that the lease accords him the rig~ to exclusively occupy the Apartment and terrace, and sets forth the rules and regulations i' I' !t: governing his rights as a shareholder in the Co-op. Musey further alleges thatthe Co-op if: breached section 7 of the lease by failing and refusing to provide him with a terrace usabltr its intended purpose and for his exclusive enjoyment. He also alleges that the Co-op brea1···;hhed sections 10 and 25 of the lease by hindering his quiet enjoyment of the terrace and by faili~ to restore the terrace to its proper and usual condition following completion of the roof work. !'.' L ;:( Musey alleges that he performed all of the obligations imposed upon him by the lease. Onl 1 1; 11 I these allegations, Musey seeks to recover compensatory damages in excess of $250,000, together with attorneys' fees, pursuant to the lease terms and Real Property Law § 234. t: The proposed contract claim is barred by the doctrine of law of the case. That docf;ine is an "articulation of sound policy that, when issue is once judicially determined, that shoul~I be I• the end of the matter as far Judges and courts of co-ordinate jurisdiction are concerned" j1 (Tischler v Key One Corp., 67 AD2d 886, 886-887 [1st Dept 1979]). I' 11 1' In the Prior Order, the Court held that any challenge to the House Rules must be rrtde in a special proceeding, and were time-barred at the time that Musey commenced the insttt " '· action. The Court then determined that Musey is not entitled to a declaration directing the Foop "to take all actions required to make the terrace habitable, including ... the installation .f r; flooring surface over the terrace membrane enabling it to withstand ordinary expected use{ ,. 1· I, (Prior Order at 9). Inasmuch as the lease provisions upon which Musey relies in the proposed contra1 claim are subject to the House Rules enacted by the Board, the proposed contract claim isl! ,,: ~ barred by the doctrine of law of the case, and, therefore, is without merit. For that reason, Page 10of15 10 of 15 Ii 1· [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 11] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 leave to amend the complaint to add the proposed contract claim is denied. Leave. to amend is also denied with respect to the proposed claims for a judicial 1: declaration and an injunction. In those claims, Musey seeks a declaration that the Co-op i~! should be settled, a cause of action for a declaratory judgment is stated" (Metropolitan I Package Store Assn. v Koch, 89 AD2d 317, 322 [3d Dept 1982)). To demonstrate entitle~nt ; to a preliminary injunction directing a party to perform a particular act or requiring a party t1' refrain from certain behavior, the plaintiff must demonstrate that it is likely to succeed on t~ I merits of the claim, that absent an injunction, it will suffer irreparable injury that cannot be P I compensated by money damages, and that the equities weigh decidedly in favor of the . pla~tiff I (W T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981); Coinmach Corp. v Fordham Hill Owne, i Corp., 3 AD3d 312, 314 [1st Dept 2004]; see CPLR 6301). i i As held above, the lease and incorporated House Rules do not obligate the Co-op tt i I. renovate the roof and render it usable as a terrace at its own expense. A declaration to th1 t effect has already been rendered, inasmuch as this Court has held such claims to be untirryely asserted. Therefore, a justiciable controversy no longer exists, and the branches of Muse~!S proposed claims regarding financial responsibility for his intended roof renovations are I mo1. As held above, the claims concerning financial responsibility for replacement of the exterior doors present triable issues sufficient to preclude summary judgment in favor of ei'1er i party. Those claims were not dismissed in the Prior Order, and remain part of this action. ' I 1: Therefore, the branches of the proposed claims concerning the exterior doors are and no need for amendment exists. duplicati~, I' In addition, the equitable relief sought by Musey in the proposed claims serves no Page 11of15 11 of 15 ! [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 12] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 practical or useful purpose, inasmuch as monetary relief would restore the benefit of his bargain, as evidenced by the contract claim in which he seeks to recover $500,000 in Ii1: compensatory damages. Where the plaintiff has a remedy at law, extraordinary equitable relief in the form of a declaration or an injunction will not be granted (see Regini v Board o~ Mgrs. of Loft Space Condominium, 107 AD3d 496, 497 [1st Dept 2013]). . For the foregoing reasons, the proposed claims for a declaratory judgment and anl, 1 injunction are without merit, and, therefore, that branch of Musey's motion for leave to am : d I the complaint to add those proposed claims is denied. ' f Similarly denied is leave to amend the complaint to assert a claim for breach of the I: I ! implied warranty of habitability. I Ii I "In every written or oral agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety" (Real Property Law§ 235-b [1]). I I· I 1 I / That warranty was not intended to address every aspect of a tenancy; rather, it was intend#d to address only those conditions that may materially threaten the health and safety of the tenant or deprive the tenant of an essential function of the leased residence (see Park W I Corp. v Mitchell, 47 NY2d 316, 327-328 [1979]). Musey does not allege that his health or safety has been materially adversely impa~ed, i as a result of the Co-op's failure to renovate the terrace to render it usable as an outdoor Ii " entertainment area and to replace the exterior doors. Therefore, the proposed contract cl1m I is palpably without merit. I I· Motion Sequence Number 003 The Co-op seeks an order quashing the 2015 amended Subpoenas Duces Tecumf: I· Page 12of15 I ' I ' ! 12 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 13] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 issued by Musey to nonparties Shavelson Neumann, the Co-op's accountant, and Standar Waterproofing, the Co-op's roofer. The Co-op contends that these subpoenas are overbr d, oppressive, and bear no relation to the issues remaining in this action. The Co-op seeks a • order imposing sanctions against Musey and hi.s attorneys equal to the amount of attorney·· fees incurred by the Co-op in moving to quash. i In opposition, Musey contends that the information he seeks is pertinent to the clai~s i' asserted in the complaint and in the proposed amended complaint. That branch of the motion to quash the subpoenas is granted. Such motions are ,. !. granted where, as here, the subpoena at issue is overbroad, and seeks material and ,. I i information irrelevant to the action (see Humphrey v Kulbaski, 78 AD3d 786, 787-788 [2d tpt 2010]; Matter of Reuters Ltd. v Dow Jones Telerate, 231AD2d337, 342-345 [1st Dept 19~]). 1: ! Such motions are also granted where, as here, the party issuing the subpoena fails to demonstrate that the information sought from the nonparty could not be obtained from the i· I parties (see Schorr v Schorr, 113 AD3d 490, 491 [1st Dept 2014]; Menkes v Beth Abraharl. Servs., 89 AD3d 647, 647 [1st Dept 2011]). With the Shavelson Neumann subpoena, Musey seeks production of all document~ including contracts, correspondence, reports, and memoranda, generated from January 2, i• r I I 2010 to the present relating to the Co-op's annual audited financial statements, allocation I shares of the Co-op, fa~ade and roof renovation project, and replacement of the Apartme"''s exterior doors. ' However, while the subpoena is addressed to Shavelson Neuman, it commands th~t ,. firm to appear and give testimony on behalf of Standard Waterproofing. Therefore, the subpoena is fatally defective, and without force or effect. ' With the Standard Waterproofing subpoena, Musey seeks production of all docum~ts, i including contracts, correspondence, reports, memoranda, invoices, generated from Janu~ I I Page 13of15 13 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 14] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 I: 2, 201 Oto the present relating to any work performed by Standard Waterproofing on the Ii !) Building. None of the material or information sought from Standard Waterproofing has an~I bearing on the issues remaining in this action. In i add~lon, Musey has failed to show that could not obtain the information sought during party discovery. Party.discovery has not ye~ commenced in this action. Lastly, that branch of the Co-op's motion for the imposition of sanctions equal to th. I 11 Co-op's reasonable legal fees, costs and disbursements incurred in defending a frivolous!~; ! maintained action is denied. Part 130 of the Rules of the Chief Administrator empowers t , f I· courts to impose sanctions upon an attorney or a party for engaging in frivolous conduct, ich includes conduct: "(1) completely without merit in law; (2) .undertaken primarily to ... harass/pr (se~ 22 maliciously injure another; or (3) assert[ing] material factual statements that are false' NYCRR § 130-1.1[c][1]-[3]; Tavella v Tavella, 25 AD3d 523, 524 [1st Dept 2006)). "Cond4t which violates any of the three subdivisions is grounds for the imposition of sanctions" /i (DeRosa v Chase Manhattan Mtge. Corp., 15 AD3d 249, 249 [1st Dept 2005)). J' 11 I: Conduct can only be found frivolous, and, therefore, sanctionable, where "it is completely i without merit in law and cannot be supported by a reasonable argument for an extension, I, I modification or reversal of existing law" (22 NYCRR § 130-1.1 [c] [1]). Although Musey's /: 1: 1: arguments were not persuasive, they were not so completely without merit so as to be frivolous, as that word is defined by 22 NYCRR § 130-1.1 (see Lewis v Stiles, 158 AD2d I. ~9, 590-591 [2d Dept 1990]). CONCLUSION i Accordingly, it is hereby I• Ii ORDERED that motion sequence number 002 by plaintiff J. Armand Musey to and to amend is denied in all respects; and it is further, re~gue /. I ORDERED that the cross-motion by defendant 425 East 86 Apartments Corp. is I' ! i• Page 14of15 14 of 15 [*FILED: NEW YORK COUNTY CLERK 01/30/2017 10:26 AM 15] NYSCEF DOC. NO. 197 INDEX NO. 157316/2014 RECEIVED NYSCEF: 01/30/2017 granted to the extent that reargument is granted on the branch of the prior motion for sum~ary judgment on the branch of the fourth cause of action for a declaration regarding who bear~\ I sole financial responsibility for renovation the terrace space, and, upon reargument, summ~ry judgment in favor of that defendant is granted on that branch of that cause of action, and t~e cross-motion is otherwise denied; and it is further, I ORDERED that motion sequence number 003 by defendant 425 East 86 Apartmer1s Corp. is granted to the extent that the August. 27, 2015 subpoenas issued by plaintiff to ~ [. ! nonparties Shavelson, Neuman & Company, LLP and Standard Waterproofing Corp. are I quashed, and the motion is otherwise denied; and it is further, ORDERED that counsel for 425 East 86 Apartments Corp. is directed to serve a ccfy I I' of this Order with Notice of Entry upon all remaining parties. I 1: This constitutes the Decision a Dated: 1I G.61 n ' Check one: PAUL WOOTEN J.S.C. I 0 FINAL DISPOSITION Check if appropriate: D • DO NOT POST ' NON-FINAL D DISPOSITIO~I I REFERENCE ' i I, I I t Page 15of15 15 of 15

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