Bedford Gardens Co. LP v Berkowitz

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[*1] Bedford Gardens Co. LP v Berkowitz 2007 NY Slip Op 50949(U) [15 Misc 3d 1132(A)] Decided on May 3, 2007 Civil Court Of The City Of New York, Kings County Kraus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. As corrected in part through May 17, 2007; it will not be published in the printed Official Reports.

Decided on May 3, 2007
Civil Court of the City of New York, Kings County

Bedford Gardens Company LP, Petitioner-Landlord


Solomon Berkowitz & Edith Berkowitz, Respondent-Tenant.

L&T 54367/01

Kraus & Kraus

Attorneys for Petitioner

33-01 Vernon Boulevard

Long Island City, New York 11106

Attn: Rita Rizzo, Esq.

Solomon Berkowitz

Edith Berkowitz

Respondents Pro Se

90 Ross Street - Apt. 3N

Brooklyn, New York 11218

Sabrina B. Kraus, J.

This summary holdover proceeding was commenced to recover possession of the subject apartment which is part of the Bedford Gardens Housing Development, a Mitchell-Lama project developed pursuant to The Private Housing Finance Law. Commencing on or about December 1997, Respondents performed unauthorized renovations of the premises in violation of their lease agreement. On May 5, 1998, HPD conducted a hearing and subsequently issued a Certificate of eviction dated July 28, 1998. The within holdover proceeding was commenced in February 2001.

On or about December 7, 2001, Housing Court issued a decision denying petitioner's motion for summary judgment. Petitioner appealed, and on or about July 29, 2003, The Appellate Term reversed, and granted petitioner's summary judgment motion and on appeal awarded Petitioner a final judgment of possession. On or about May 18, 2005, Petitioner's motion for issuance of the warrant of eviction was granted. On or about September 23, 2005, the Court issued an order giving respondents 10 days to cure the breach of lease. Respondents failed to cure, and additional motions to further extend their time to cure were denied.

The record reflects that Respondents knowingly and willfully breached their lease, and despite being afforded numerous opportunities to cure the breach, over the six years this litigation was been pending, failed to do so.

This Court denied Respondents' Order to Show Cause on December 8, 2006 finding that the application was made without any meritorious basis, and solely to delay Petitioner's rightful execution of the warrant of eviction herein. On December 13, 2006, Petitioner executed on the warrant and obtained possession. On or about December 14, 2006 this Court declined to sign Respondents pro se post-eviction Order to Show Cause, noting that the execution of the warrant [*2]was legal based on the Court's December 8, 2006 decision. However, the Appellate Term signed the Order to Show Cause, stayed Petitioner from removing any of the contents of the premises, and referred the motion back to this Court for determination.

On or about February 6, 2007, this Court issued a decision which inter alia denied Respondents' post-eviction Order to Show Cause, as far as the claims made for restoration to possession, but granted Respondents relief to the extent of allowing them access from February 20, 2007 - February 23, 2007 for the removal of their belongings. The order further provided that upon the expiration of the applicable stay, Petitioner was free to remove any remaining possessions in any manner allowed by law.

Respondents thereafter sought to appeal this Court's February 6, 2007 decision and order. In connection with said appeal, Respondents moved by Order to Show Cause, at the Appellate Term, for a motion permitting them limited access for removal of their possessions, or in the alternative restoring them to possession pending the determination of the appeal. The Appellate Term signed the Order to Show Cause on February 22, 2007, and gave Respondents interim relief of providing them with access to remove their possessions.On or about April 5, 2007, the Appellate Term issued a decision and order denying said motion. Through and including t, he date of the decision, Respondents had been represented by Tenenbaum & Berger, LLP.[FN1]

On April 11, 2007, after the Passover observance, Petitioner proceeded to remove Respondents' possessions from the apartment, in accordance with the orders issued in this proceeding. Petitioner alleges that on said date, Respondents' adult son, believed to be Moses Berkowitz, illegally entered the subject apartment, and would not leave until he was physically removed by the New York City Police Department. Respondent never submitted any papers in opposition to this allegations in Petitioner's cross-motion.

At the same time as his son had trespassed upon the landlord's premises, and barricaded himself in the apartment to prevent the removal of the remaining possessions from the apartment, Mr. Solomon Berkowitz, moved this court pro se by Order to Show Cause for relief repeating the identical allegations already ruled upon and rejected by the Court in its February 6, 2007 decision and order. The Court declined to sign the Order to Show Cause, based upon the Appellate Term's denial of the relief pending appeal, pursuant to that Court's April 5, 2007 decision and order. Respondents then moved the same day, on April 11, 2007, pursuant to CPLR 5704, to have the Appellate Term sign the Order to Show Cause rejected by this Court. The Appellate Term also declined to sign the Order on April 11, 2007.

Having made the application twice in one day before two different Courts, and having been denied the relief, Mr. Berkowitz then moved a third time, on the same day, for relief seeking access to the apartment to remove their possessions. Mr. Berkowitz made the application after 3:30 P.M., so that their application was heard by a Judge, who was unfamiliar with the matter, and who did not have the benefit of seeing the court file. This third Order to Show Cause was signed by Judge Edwards, who ordered as interim relief that Petitioner be [*3]stayed from re-letting the premises and removing Respondents possessions from the premises, and further ordered that Respondents be provided access for the purpose of obtaining their possessions. This motion was heard before the Court on April 13, 2007.

On April 13, 2007 Respondents were represented by newly retained counsel, Roman & Singh, LLP. On the return date, Solomon Berkowitz was sworn in by the Court, and he began giving testimony. During the course of the hearing, he lost his temper, became irate, and stormed out of the Courtroom un-excused by the Court. At some point after his exit, the attorney for Respondent, Hector M. Roman, Esq. made an oral application to withdraw the motion with prejudice. The application was granted by the Court pursuant to a written order, which provided in part that had the frivolous motion not been withdrawn, the Court was likely to have issued sanctions against Respondents for their blatantly frivolous litigation and repetitive motion practice. The order further provided that "Any further frivolous applications shall be met with the imposition of sanctions. Petitioner may proceed to remove any and all remaining belongings from the apartment forthwith ...".[FN2] Additionally, the Court instructed the clerk's office that any further applications for an Order to Show Cause should only be referred to this Part.

In the afternoon of April 13, 2007, in accordance with this Court's order, Petitioner hired a professional moving company for the second time to remove Respondents' belongings from the premises. Once again, an adult relative of Respondents is alleged to have illegally entered the Apartment and refused to leave.

At the same time, in complete defiance of all previous Court orders and warnings, on April 13, 2007, the same day that Mr. Berkowitz had been advised that any further applications would be met with sanctions, Mr. Berkowitz waited until after 3:30 p.m., when he knew he could expect the application to a referred to a Judge unfamiliar with the matter, and again sought an Order to Show Cause seeking the identical relief of access to remove his belongings from the premises, and claiming that his attorney had withdrawn the application without his permission or consent.

This application was made pro se, and implied that based on the difference of opinion with Mr. Roman, his attorney in how Mr. Roman had handled the morning appearance, Mr. Berkowitz no longer wished Mr. Roman to represent him. However, the appropriate papers required for Mr. Berkowitz to proceed pro se were never filed.

In accordance with this Court's direction, upon his appearance in the clerk's office, at approximately 4:30 p.m., the clerk called Part A and advised he would be sending the application up for determination before this Court. At approximately 4:45 p.m., no application had come up from the clerk's office and the Court asked the Court Attorney to go to the clerk's office and check into what happened with the application. [*4]

Shortly thereafter, the Court received a phone call to which NYPD Officer Newman, Petitioner's attorneys, and the management agent for petitioner were all parties via conference call. Officer Newman was calling to confirm the Court's order from earlier that day, that Respondents were not entitled to possession, that the trespasser could be removed, and that the Petitioner had complete legal authority to move forward with the removal of the possessions from the apartment. As the Court was confirming the details of the order with the Officer, the Court Attorney returned from the Clerk's office and advised that in fact yet another Order to Show Cause had been signed by a Judge sitting in Part Y.

Inexplicably, in between 4:30 p.m. when the clerk had called and advised that the application would be sent up to Part A, and 4:45 p.m. when the Court Attorney went down to check on the papers, Mr. Berkowitz somehow managed to get his papers in front of yet another Judge, who without the benefit of the file signed the Order to Show Cause and afforded Respondents interim relief of staying Petitioner from removing the possessions from the apartment, and allowing Respondents access to the apartment for the removal of property.

At this point, since it was 5 p.m. on Friday, the Court interpreted the newly signed order to grant during normal business hours, and that Petitioner could make any further appropriate application on Monday morning.

On April 16, 2006, counsel for Petitioner appeared and moved ex parte for an order modifying the interim relief granted by Judge Chin, in Mr. Berkowitz' ex parte, application on Friday afternoon. The Court modified the interim relief granted, based on: 1) the fact that the pro se application was improperly made without the filing of the necessary papers to proceed pro se after the appearance of counsel; and 2) that the interim relief was in direct contravention of previous orders issued by this Court and the Appellate Term; and 3) the danger created by Respondents' intentional trespass on the premises, necessitating ongoing intervention of the New York City Police Department. The modification was only to the extent of vacating the interim relief allowing Respondents access to the premises, and the order further provided that no access of any kind would be given to Respondents pending the hearing and determination of the motion.

Finally the order further provided "Additionally, Respondents should be prepared to address the issue of sanctions for their repetitive, frivolous applications on the return date of April 17, 2007." Petitioner was directed to serve the Order by facsimile on Respondent's counsel, as well as personally on a member of Respondents' family.

On the return date of the motion, Respondents' counsel filed an affirmation confirming that he had spoken with Mr. Berkowitz, and that on April 16, 2007 Mr. Berkowitz had terminated him as his attorney. On the same date, Mr. Berkowitz failed to appear on the motion. Instead Rachel Goldenberg came to Court on behalf of Mr. Berkowitz, with a written letter dated April 16, 2007 which stated "I hereby authorize my family social worker, Rachel Goldenberg, LMSW to represent me at the April 17, 2007 hearing in order to show cause filed on 4/13/07." The letter was signed Solomon Berkowitz and family. Additionally, on that date Petitioner filed a Notice of Cross-Motion seeking the imposition of sanctions, costs, and attorneys' fees against Respondents, based on their frivolous conduct in this matter.

On the return date, Rachel Goldenberg was heard by the Court. She stated that she was a social worker, specializing in the treatment of children under three years old. She further stated [*5]she had not treated either Mr. or Mrs. Berkowitz, nor had she discussed the case with them, but that she was in Court to advise the Court that the grandchildren of the Respondents had been seeing her for the trauma they have suffered by witnessing what their grandmother has gone through during this litigation. She represented to the Court that Mr. Berkowitz was too ill to attend Court, but had no documentation to support this claim. The Court advised Ms. Goldenberg that, as she was not at attorney, she could not represent Respondents in this proceeding. The Court issued a written order denying Respondent's order to show cause, based upon the multiple previous denials for identical relief, and adjourning the cross-motion for sanctions to May 23, 2007, in order to give Respondents an opportunity to oppose or be heard on the cross-motion and appear for the hearing.

Ms. Goldenberg indicated that she would advise Respondents of the adjourn date.

Later that same day, at approximately 3:00 p.m., Joel Berkowitz, the son of respondents, appeared in Court to seek an Order to Show Cause for access to remove belongings from the premises. The Court declined to sign the motion and advised Mr. Joel Berkowitz that this application had already been repeatedly made and denied, and that a hearing had been scheduled for April 23, 2007 on the issue of sanctions and that his parents should appear on that date. The Court declined to say and again gave notice of the sanctions hearing scheduled for the April 23, 2007 hearing in a written order, a copy of which was provided to Joel Berkowitz, who indicated he would advise his parents of the hearing date.

On April 18, 2007, Mr. Solomon Berkowitz, who was allegedly too ill to appear in Court on April 17, 2007 for the hearing on his motion and in response to the Court's order that he appear to address the issue of sanctions, came to Court after 3:30 p.m. in search of yet another Judge unfamiliar with proceeding, for the identical relief repeatedly sought and denied. The application came before Judge Milin who referred the application back to this Part. The Court held the application until May 19, 2007 at 1:15p.m. Respondent never appeared in the Part on behalf of his application, and the Court declined to sign the application, noting on the papers that Respondents already had a Court date of April 23, 2007 regarding the issue of sanctions.

Petitioner's Cross-Motion for Sanctions

On April 23, 2007, no one appeared on behalf of Respondents and as of 10:30 am Respondents were defaulted and the cross-motion for sanctions was marked submitted decision reserved.

Later that morning a Mr. Moses Berkowitz, another son of Respondents, appeared on their behalf to inquire as to the status of what had occurred at the hearing. The Court advised him that the matter was marked submitted, and the Court would issue a decision and mail it to the parties. [FN3]

Petitioner's cross-motion seeks the imposition of sanctions against Respondents in the [*6]amount of $10,000.00 as well as a money judgment for attorneys fees, and costs incurred as a result of Respondents frivolous conduct.

22 NYCRR 130-1.1 allows the Court to exercise its discretion to impose costs and sanctions on a party for frivolous conduct. Pursuant to Part 130-1.1 frivolous conduct includes conduct which is completely without merit in law, is undertaken to harass or maliciously injure another, or asserts material factual statements that are false.

An award of costs or the imposition of sanctions may be made either upon a motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. In the case at bar, the issue is raised both by the court sua sponte pursuant to its orders of April 13, 2007 and April 16, 2007, and pursuant to the cross-motion filed by petitioner.

"In determining whether the conduct undertaken was frivolous, the court shall consider among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal and factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal and or factual basis ... was brought to the attention of counsel..". 22 NYCRR  101-1.1(c)(3).

Motion practice several years after judgment, lacking legal support and intended only to delay enforcement of the judgment has been held to be a valid basis for sanctions. Levy v. Carol Management, 260 AD2d 27, 34 (1st Dept., 199) citing Minister, Elders and Deacons of Reformed Dutch Church v. 198 Broadway, 76 NY2d 411.

As indicated above, Respondents post-eviction order to show cause was denied pursuant to this Court's order dated February 6, 2007. This order included and addressed both claims for restoration of possession and requests for access for the removal of Respondents belongings. Respondents are appealing said order, and further request for interim relief including limited access for the purposes of removing belongings was denied by the Appellant Term pursuant to its April 5, 2007 decision and order.

The Court finds that each and every application made after the denial of the motion by the Appellate Term on April 5, 2007 to be frivolous and made in bad faith solely for the purpose of frustrating Petitioner's right to take back possession of the subject premises.

"...(T)his was a relatively uncomplicated piece of landlord-tenant litigation.' The facts are simple and straightforward, but the procedural route, relentlessly prolonged by the (tenants) has been torturous." Levy v. Carol Management Corp., supra, at 28.

Since the denial of the motion, Respondents engaged in a series of frivolous motions seeking the same relief over and over again, as well as other frivolous and dilatory litigation tactics in complete disregard of the orders of this Court.

"Where motions are redundant to matters already decided on the merits constituting a lengthy barrage of litigation to relitigate those already-decided matters, but that protracted litigation continues, with rulings ignored, despite the court's warnings to cease delay tactics, sanctions are appropriate to punish frivolous litigation." Levy v Carol Management Corp., supra at 34, citations omitted; Jemzura v. Mugglin, 207 AD2d 645 (3rd Dept., 1994).

The Court notes that from the date the Appellate Term awarded a judgment of [*7]possession to the landlord, July 29, 2003, through the date that Petitioner first hired a professional moving company to remove the remaining belongings, April 11, 2007 Respondents had almost four years to voluntarily remove their belongings from the subject premises.

Petitioner took legal possession by executing on the warrant on December 13, 2006. From December 13, 2006 until Passover, Respondents were repeatedly granted access for the purpose of removing their belongings from the subject premises. Petitioner allowed Respondents access upon request for this purpose for almost four full months after the valid execution of the warrant of eviction. This Court in its February 6, 2007 decision and order set aside three full days from February 20, 2007 through February 23, 2007 for Respondents to have access to the premises to remove their belongings. Even after the expiration of any remaining stays, when the Appellate Term issued its April 5, 2007 decision and order denying Respondents any further relief, Petitioner out of respect for Respondents religious observances waited until the end of the Passover holiday before finally hiring a moving truck to remove the remaining belongings from the premises.

Given the foregoing, the Court finds that there can be not other conclusion then finding each and every application made by and on behalf of the Respondents after April 5, 2007 to be frivolous and made in bad faith.

"Sanctions are retributive in that they punish past conduct. They are also goal oriented, in that they are useful in deterring future frivolous conduct ... The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics." Levy v. Carol Management Corporation, 260 AD2d 27, 34 (1st Dept., 1999). The measure of sanctions should be proportionate to the amount sought in the lawsuit, the culpability of the party's conduct and prejudice to the adversary. Viacom v. Silverwood, 188 AD2d 1057 (4th Dept., 1992).

Petitioner's cross-motion establishes that Petitioner has incurred close to $71,000.00 in legal fees to date in this matter. Of this total, the bills submitted by Petitioner in support of its cross-motion show that $2400.00 of those fees were incurred for the repeated applications after April 5, 2007. Additionally, Petitioner incurred charges for the aborted moves at $500.00 per move. Therefor, the Court finds that petitioner is entitled to a money judgment against Respondents in the amount of $3400.00 representing their costs and fees for the frivolous post-eviction orders to show cause brought after April 5, 2007.

This constitutes the decision and order of this court.

.Dated: May 3, 2007

Brooklyn, New York


Hon. Sabrina B. Kraus

J.H.C. [*8]



Footnote 1:Not to be confined to State Court applications, respondents also filed a complaint in Federal Court alleging that based on due process violations they were entitled to a trial de novo in Housing Court. These claims were dismissed by Order dated February 22, 2007.

Footnote 2:Later that morning it was confirmed to the Court by Mr. Berkowitz had in fact received a copy of the order and was aware of its contents as he sought to contest the actions of his attorney in withdrawing the order, the Court took the opportunity to impress upon Mr. Berkowitz on the record that any further frivolous applications would be met with the imposition of sanctions.

Footnote 3:Mr. Moses Berkowitz indicated that there was no forwarding address for his parents. The Court thus advised that a copy would be mailed to the last address of record and that a copy would be available in the Courthouse as well. Mr. Moses Berkowitz spent most of the remainder of the morning observing the cases in Part A and then left.