Theodoli v 170 E. 77th 1 LLC

[*1] Theodoli v 170 E. 77th 1 LLC 2013 NY Slip Op 51310(U) Decided on August 9, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Schoenfeld, Shulman, JJ
570128/13.

Agnes Ines Theodoli and Phillips H. Clarke, III, Plaintiffs-Appellants,

against

170 East 77th 1 LLC, 170 East 77th 2 LLC, 170 East 77th 3 LLC, 170 East 77th 4 LLC, 170 East 77th 5 LLC, 170 East 77th 6 LLC, 170 East 77th Realty Group LLC, Dominion Property Group LLC, Dominion Realty Corporation and William J. Diamond, Defendants-Respondents, 170 East 77th 1 LLC, 170 East 77th 2 LLC, 170 East 77th 3 LLC, 170 East 77th 4 LLC, 170 East 77th 5 LLC, 170 East 77th 6 LLC, 170 East 77th Realty Group LLC, as Tenants in Common, Plaintiffs-Respondents, Agnes Ines Theodoli and Phillips H. Clarke, III, Defendants-Appellants.

In consolidated actions, individual appellants Theodoli and Clark, plaintiffs in action number 1 and defendants in action number 2, appeal, as limited by their briefs, from (1) that portion of an order of the Civil Court of the City of New York, New York County (Arlene P. [*2]Bluth, J.), dated November 4, 2011, which dismissed the complaint in action number 1 and (2) an order (same court and Judge), dated January 10, 2012, which, inter alia, granted summary judgment to respondents in action number 2 in the principal sum of $106,836.25, and dismissed appellants' counterclaims.

Per Curiam.

Order (Arlene P. Bluth, J.), dated November 4, 2011, insofar as appealed from, modified to reinstate the first cause of action in action number 1 as against the corporate respondents and to preclude appellants from presenting evidence of mold or other toxic conditions in the apartment premises; as modified, order affirmed, without costs. Order (Arlene P. Bluth, J.), entered January 10, 2012, affirmed, with $10 costs.

These consolidated actions arise from the prior, unregulated tenancy of appellants (plaintiffs in action number 1 and defendants in action number 2) in a luxury apartment building formerly owned and/or managed by the corporate respondents (defendants in action number 2 and plaintiffs in action number 1), a building ultimately converted to condominium ownership. We agree that a sanction for spoliation of evidence is warranted due to the substantial alteration work undertaken by appellants in the apartment premises, including the remediation of the mold condition complained of, actions which ran counter to the clear provisions of a preliminary conference order authorizing respondents to conduct an independent inspection of the apartment. As the motion court appropriately recognized, appellants' conduct "severely prejudiced" respondents' ability to mount a defense against appellants' mold claim. However, since appellants' unauthorized renovation and remediation efforts will have little, if any, impact on respondents' ability to defend against appellants' remaining allegations of breach of the warranty of habitability — including their claims of water damage and insect and rodent infestation — the extreme sanction of dismissal of appellants' habitability claim in its entirety was unwarranted (see Tommy Hilfinger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [2002]). The lesser sanction of preclusion specified above is a more appropriate remedy under the circumstances, particularly where the water damage claimed by appellants was observed and photographed by respondents' employees and where, as indicated, respondents' defense against appellants' infestation claims is not compromised as a result of appellants' unauthorized apartment work (see Hoffman v United Methodist Church, 76 AD3d 541, 543-544 [2010]). No basis was shown to affix personal liability on the individual respondent, Diamond (see Waldman v Englishtown Sportswear, Ltd., 92 AD2d 833 [1983]), and we thus sustain the dismissal of appellants' claims against him in action number 1.

Despite the survival of at least a portion of appellants' habitability claims, we nonetheless sustain the grant of summary judgment in favor of the corporate respondents on their rent claim underlying action number 2. Any further delay in payment of the substantial (over $106,000), unabated rent arrears is unjustified in the particular circumstances of this case, in view of appellants' admission that they did not reside in the apartment premises for much of the relevant time period (see Halkedis v Two E. End Ave. Apt. Corp., 161 AD2d 281 [1990], lv denied 76 NY2d 711 [1990]) and the fact that possession is no longer at issue (see R.V.R. Realty, LLC v Tenants Alliance, 305 AD2d 289, 290 [2003]), appellants having previously purchased and sold the condominium apartment unit, apparently reaping a tidy profit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 09, 2013