4 Arts Coop. Corp. v Ensley

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4 Arts Coop. Corp. v Ensley 2018 NY Slip Op 33485(U) December 7, 2018 Civil Court of the City of New York, New York County Docket Number: 73948/17 Judge: Gary F. Marton Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 157392/2014 NYSCEF DOC. NO. 348 RECEIVED NYSCEF: 02/05/2019 (FILED: NEW YORK COUNTY CLERK· l.2/17/2018 04: 58 PMJ · INDEX NO. 157392/2014 RECEIVED NYSCEF: 12/17 /2018 . WYSCE( DOC. NO. 338 CIVIL COURTOFTHE CITY OF NEW YORK COUNTY OF NEW YORK: HOUSING PART C A"Ji'""i'i"''F<""7"'7~~r>-r1'Fn.-.'R~=-:::-""~------x Ind~x No. 7394811 7 4 ARTS COOPERATIVE CORP.; . Petitioner, . DE'CISION/ORDER .· . · -against- · · · · . · · . .· ·. · . SUSAN ENSLEY AS EXECUTRIX OF THE ESTATE Present: OF EDWARD CHAPLIN et al., . Respondents. . i-Ion. GARY F. . x MARTON . ~--~~~~~~~~......,.._,;..~~~....._..........;.;....;_,~~~~ CIVIL COURT OF THE CITY OF NEW YORK .. . COUNTYOF NEW YORK: HOUSING PART C ,,~;-;:;::;n-;~7"~.,......:-=~~~~~;:::--~---"~--'-~-'-~~x 4 ARTS CObPERA TI VE CORP., Index No.. 73949/17 DECISION/ORDER. Petitioner, · ·. . -against- . .. . 483 BROOME CORP. etal., ·Present: Responde·nts!. Hon. GARY F. _...,......_..___ _ _ _ _....,,..._~--"-------.....,..--·x MARTON of · Recitation the papers considtrcg in 1hc review of the motion: · · Papers .. , · · · Numbered Respondent's motion to dismiss ·....... ;................................. ~ .... :.;... l : Petitio1\cr's cross n1ot'iC1n· · · .................................................................. 2 Respondent's.Jcply.affirmation ... ~ ...................... ~....................................... 3 Respondent's affidavit in opposition . ...................................... ~............. 4 Petitioner's reply aflinnation .................:............................................... S Petitioner's supplemental affirmation · . .................................................... 6 · . Petitioner's reply afflm1ation ... , ......... ;................. f.......... ; .................... ,..,... 7 Respondent's response to suppleme11tal affirmation · · .......................... 8 . Respondent's n1otion for· a, stay ..... ;.. ;.............·........;:................................... ·9 Petitioner's affirmation in opposition .:....................... :............ ;; .... :.. ~···· 10 · Respondent's reply affirmation ...... :.........................,......................... ,....... 11 The court fiJcs ................................... :.......................... ;............... '.., ..... ~..... I2 Rcsi10ndents' cgunsel Jack L. Lester · · 99 Park Avenue - Ste. 1100 New.York, NY !0016 .· (21.2) 832-5357 Pet it ion er 's ,counsel Rosenberg & Estis, P.C., 733 Third Avenue New York, NY 10017 (212) 867-6000 ·. Petitione1: commenced these t':VO holdover proceeding~ in Sept~mber, 2017 .. There.after, respondents(hereinaftcr.".Enslei') interposed answers and then moved to dismiss, petitiqner (hereinafter,. ~'4·Arts Co-op") c:ross-moved to sfrike deferises, · . / . .. . . . . . for summary judgment, and for related relief, and Ensley in . . a second and later motion moved for a stay. . Hy a decision and order dated November 28, 2018 the . . . ' .court denied Enslci's motions but cqritinued toreserve·decision on petitioner's r~otion. Now,: as set o~t below, the courfgrants petitioner's motion .. Page 1 of 5. 2 of 6 [* 2] \ NYSCEF DOC. NO. 348 INDEX NO. 157392/2014 \ !FILED: NEW YORK COUNTY CLERK 12/17/201·8 04: 58 PMJ RECEIVED NYSCEF: 02/05/2019 INDEX NO. 1~7392/2014 .NYSCEF: DOC .. NO. 338 RECEIVED NYSCEF: 12/17/2018 BACKGROUND. The premises at i.ssue in _these proceedings (hereinafter, the "Housing Court · . proceedings'') consists of two cooperative apartments that occupy the entire top floor of a fi've~story building. By a two-attorney stipulation "so ordered'' herein on OctoberJ 7, 201.7 th~ parties agreed; inter alia, that"[t]his proceeding and the proceeding of 4 Arts Cooperative Corp. v 438 Broome ·corp. -L&Tind~x No. 73949/1 Tare hereby-consolidated for the purpos~ of motion practice and trial only_, with both i:natt~r[s] prQceeding under this index number 73948/17 .." \ · Petitioner is the p·roprietary le_ssor of both apartments; Edward Chaplin, ·until his death in 2011, was the proprietary lessee of one apartment and a . - . .. shareholder·of the corporate proprietary lessee of the other. Upon Chaplin's death Susan Ensley bcca1ne the executor of his estate and the sole shareholder of the "- . . . . corporate lessee. In·July, 2014 Ensley began two proceedings against4Arts Co-op and a dozen other defendants in Supreme Court, New. York County (hereinaftert. the . . . ''Supreme Court proceedings") ui1der index numbers 156926114 and 157932/14. .• .. Ensley~sought money damages for 4Arts Co-op's allege.d breach ofthe warranty ~f habitability and failure to remedy aJJeged conditions ofinhabitability at the premises. At about the same time she moved by'"order to sho~ cause in both . proceedings for~ TRO and injunctive relief. The court(Kenney, J} signed the show cause orders, made thern returnable on September 9, 2014 and, pending the hearing ofthe _motions, restrained 4 Arts Co-op "from undertaking, or taking any act toterminate th~ Proprietary Lease of the plaintiffs for failure to pay unpaid . . rents, additional rents, maintenance, assessments, late fees, penalties, legal fees, management fees, other professional fees, portion of taxes and mortgages." :,. Page 2 of 5 3 of 6 [* 3] INDEX NO. 157392/2014 NYSCEF DOC. NO. 348 (FILE~: NEW YORK COUN'l'Y CLERK 12/17/2018 04: 58 PMJ NYSCE~ DOC. NO. 338 RECEIVED NYSCEF: 02/05/2019 . INDEX NO. 157392/2014 RECEIVED NYSCEF: 12/17/2018 About 10 months later, in July, 2015~ Ensley began J·U1 proceedings in this . court under index numbers 6160/15 and 61 I 2/15. She alJeged that there were · -· violations of the housing maintenance code at the premises. She brought the HP proceedings againstthe instant petitioner, against the statutorily required. Department·of Housing Preservatio~·and Development of the City of New York ("HPD"), and against orie other respondent, RM. Building Consulting LLC. By a three-attorney stipulation "so ordered" on September 9, 2016 the parties settled the matter. Some eight months later in the- Supreme Court proceedings; and by a twoattorney stipulation "so ordered" on April 20, 2017, the patties agreed that the "TRO is modifiedto permit co-op [defendants] to file a counterclaim or separate action against [petitioner] for. nonpayment. All other requested relief is hereby· withdrawn. 11 Shortly thereafter, 4 A1ts Co-op began the instant Housing Court proceedings. RESPONDENT'S ANSWERS Ensley interposed identical answers in each of the Housing Court proceedings. Each answer sets out what are denominated as six affirmative defenses and two counterclaims, the. first counterclaim overlapping with the fifth affinnative defense and the second counterclaim overlapping with the sixth affirmative defense. The first affirmative defense seeks dismissal on the ground that the Supreme ., Court proceedings constitute "another action pending between the parties for the same cause of actio1i," CPLR 32 l l(a)(4). However, the causes of action arc not the same and, in addition, the parties are not the same. The court grants ' petitioner's motion to the extent of striking the first affirmative defense." Page 3 of 5 4 of 6 [* 4] INDEX NO. 157392/2014 NYSCEF DOC. NO. 348 {FILED: NEW YORK COUNTY CLERK 12/17/2018 04: 58 PMJ . NYSC~t.. DOC. NO. 338 RECEIVED NYSCEF: 02/05/2019 INDEX NO. 157392/2014 RECEIVED NYSCEF: 12/17/2018 The second affirmative defense alleges in conclusory terms that the petition is defective, that necessary parties have not been named, and that certain u~specified dates are ~rroneous. The court holds that this second defense is .Pled without.-suffi~ienl particularity and the court grants' petitioner's motion to the extent of striking the second affinnative defense. The third and fourth defenses are to the effect that legally sufficient service of the petition, nRtice of petition, and" all predicate rioticesn was not made. However, in two-attorney stipulations uso ordered" on October l 7) .2017 and November 13, 2017 these defenses were waived. The courtgrants petitioner's motion to the extent of striking the third and fourth ·amnnative defenses. The fifth affinnative defense and first counterclaim are to the effect that petitioner breached the warranty of habitability. However, inasmuch as respondent has raisedc Jhis breach of warranty claim.in the Supreine Court proceedings, and inasmuch as the proprietary leases (at paragraph l(d)) bar the assertion of these claims here, and inasmuch as respondent does not demonstrate the invalidity ofthis_bar, see, e.g., Dune Deck Owners Corp. v liggelf, 34 AD 3d ?23 (2"d Dep't, 2007), the court grants petitioner's motion to the extent o~.striking the fifth affinnative defense and the first counterclaim. The sixth affirmative defense and second counterclaim are to the effect that petitioner breached the proprietary lease when it "wrongfully and illegally amended the By-Jaws ... in bad faith without a reasonable business purpose in I. I violation of the Business Judgment Rule solely to punish and penalize Respondent for raising clain1s ... relating to Petitioner's breach of the Wa1Tanty of Habitability." Inasmuch as respondent has raised her· breach of warranty claims in ' . the Supreme Court proceedings, and inasmuch as she may. not raise them here, the court grants petitioner's motion to the _extent of striking the sixth affirmative Page 4 o.f 5 5 of 6 [* 5] INDEX NO. 157392/2014 NYSCEF DOC. NO. 348 !FILED: NEW YORK COUNTY CLERK 12/17./2018 04: 58 NY.SC::Et DOC. NO. 338 pMJ RECEIVED NYSCEF: 02/05/2019 INPEX NO. 157392/2014 RECEIVED NYSCEF: 12/17/2018 defense and the second counterclaim. The cou1t declines to address the argument . that this court lacks subject matter jurisdiction to address the argument that the byla\vs were amended to penalize respondent. SUMMARY JUDGMENT "The proponent of a summary judgment motion must make a prima fade showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the -case [citations omitted]. Winegrad v New York University Medical Center, 64 NY 2d 851, 853 (1985). Here the moving papers show th~t petitioner is the lessor of the premis~s, that respondent is the lessee, that the premises· is located in a building duly registered with HPD as a multiple dwelling, that petitions, notices 0f petition, and predicate notices were du.ly served, that uncontestedly maintenance has not been paid since March 1.;2014, that payment of the.same is required by_ the leases, that through . . December 3 l, 2017, to which date the court amends the petition, the maintenance arrears total $2 l 8;944.39, and that petitfoner otherwise proved a prima faci.e case. Accordingly, the court grants petitioner's mption as foJlows: (1) a possessory judgment for $218,944.:39 shall be entered in petitioner's favor, (2) one or more watTants of eviction may issue forthwith without stay of execution but su~h issuance shall not preclude an application for relief purs,uant to RP APL § ' . 753, and (3) .on papers setting for the particuJa1:s thereof'petitioner may .ni'ove for an award of attorney's fees, interest, late fees, and such other relief as may seem just. The court will mail to the parties copies of this decision and order. Da.ted: NewYork,NY December 7, 2018 . · • ~ .. ·.· . . · · •. . 6 of 6

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