Mindel Residential Props., L.P. v Dello Russo

[*1] Mindel Residential Props., L.P. v Dello Russo 2008 NY Slip Op 50274(U) [18 Misc 3d 1133(A)] Decided on February 11, 2008 Supreme Court, New York County Shulman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 11, 2008
Supreme Court, New York County

Mindel Residential Properties, L.P., Plaintiff,

against

Stephanie Dello Russo, BOGA GENERAL CONTRACTORS, INC., ANTHONY BOGA d/b/a BOGA GENERAL CONTRACTORS, ANTHONY BOGA, HAROLD S. SPITZER ARCHITECT, P.C., HAROLD S. SPITZER, "ABC, INC.," and "JOHN DOE", Defendants.



104947/06



Appearances of Counsel:

Silverberg, Stonehill, Goldsmith & Haber, P.C.

Attorneys for Plaintiff

Hoey, King, Toker & Epstein

Attorneys for Def. Dello Russo

Ahmuty, Demers & McManus

Attorneys for Defendants Boga General Contractors, Inc., Anthony Boga d/b/a/ Boga General

Contractors and Anthony Boga

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Attorneys for Defendants Harold S. Spitzer Architect, P.C. and Harold S. Spitzer

Braverman & Associates

Attorneys for Defendant Stephanie Dello Russo on Counterclaim

Law Offices of Todd M. McCauley, LLC

Attorneys for Plaintiff on Counterclaim

Martin Shulman, J.

In this "neighborly" battle, defendant, Stephanie Dello Russo ("SDR" or "defendant"), fired the first salvo in this round of motion practice and moves for summary judgment (CPLR §3212) dismissing the complaint of plaintiff, Mindel Residential Properties, L.P. ("Mindel Res." or "plaintiff"), which owns combined properties located at 183-185 East 64th Street, New York, New York 10021 ("183/185 Property"). SDR inter alia claims that because Mindel Res. purportedly is not the owner of the relevant portion of the 183/185 Property, it is the wrong party to have commenced this action which must fail as a matter of law.

Mindel Res. commenced this action for injunctive relief against SDR, who owns an adjoining townhouse at 181 East 64th Street, New York, New York 10021 ("181 Property"), to remove alleged encroaching renovations she constructed on the 183/185 Property [FN1] pursuant to RPAPL §871. Plaintiff has also asserted common law claims against SDR, SDR's general contractor, Boga Contractors, Inc. and Anthony Boga, individually ("Boga"), and SDR's architect, Harold S. Spitzer, P.C. and Harold S. Spitzer, individually ("Spitzer")(collectively, "defendants", where appropriate) for trespass, nuisance and negligence in the construction of alleged encroaching structures. SDR has asserted counterclaims against Mindel Res. alleging adverse possession, easement, nuisance, trespass and negligence as well as cross-claims against her remaining co-defendants for contribution and indemnification.

SDR's summary judgment motion also seeks the dismissal of co-defendant Boga's similar cross-claim. Like SDR, Spitzer also cross-moves for summary judgment dismissing the complaint on identical grounds and dismissing SDR's cross-claims. Without a formal motion, Boga adopts the factual and legal assertions raised in his co-defendants' respective summary judgment motion and cross-motion for dismissal of the complaint. Plaintiff opposes defendants' summary judgment motion and cross-motion for dismissal and in turn cross-moves inter alia for leave to amend its complaint. The motion and respective cross-motions are being consolidated here for disposition.

Defendants' Summary Judgment Motion and Cross-Motion

Because defendants' search of public records revealed that MMG Residence Trust, and not Mindel Res., is the record owner of that portion of the 183/185 Property immediately adjacent to the 181 Property implicated in this RPAPL §871 encroachment removal action, SDR's motion and Spitzer's cross-motion seek summary judgment of dismissal because plaintiff does not have the requisite ownership interest to prosecute this action. Anticipating the possibility that Mindel Res. might be able to prove its ownership of that portion of the 183/185 Property to avoid dismissal, Spitzer further claims plaintiff's action should be dismissed as being barred by adverse possession. In her reply papers, SDR adopts Spitzer's adverse possession argument. At the very least, both SDR and Spitzer seek dismissal of plaintiff's sixth cause of action for punitive damages both as to its form (impermissible to maintain a separate cause of action for punitive damages) and substance (e.g., no legal basis for an adjacent property owner to seek punitive damages against a design professional, SDR's renovation work utilizing the [*2]services of Spitzer and Boga was not performed with evil or wrongful motive or with a wilful intentional misdoing and/or a reckless indifference equivalent to warrant exemplary damages, etc.).

Plaintiff's Cross- Motion to Amend Complaint

Proffering documentary evidence of record ownership, Mindel Res. opposes defendants' summary judgment motion and cross-motion for dismissal and cross-moves inter alia: for leave to amend its complaint which would correct a pleading error regarding Mindel Res.'s ownership of that portion of the 183/185 Property, thereby vitiating defendants' motion and cross-motion; to correct a pleading error requesting punitive damages as a general prayer for relief rather than erroneously as a separate cause of action (plaintiff also highlighted the prematurity of foreclosing plaintiff's entitlement to punitive damages which could be potentially proven through discovery); and to add "Jane Doe", SDR's unnamed landscaper, and another one of SDR's contractors, Edson USA, Inc. ("Edson"), as new party defendants. Plaintiff's cross-motion also seeks sanctions against the defendants for failing to proceed with plaintiff's scheduled deposition.

Discussion

This court will apply a parallel analysis to defendants' respective summary judgment motion and cross-motion and plaintiff's pleading amendment cross-motion.

An award of summary judgment is appropriate when no issues of fact exist. See CPLR 3212(b); Sun Yau Ko v. Lincoln Sav. Bank, 99 AD2d 943, 473 NYS2d 397 (1st Dept., 1984), aff'd 62 NY2d 938, 479 NYS2d 213 (1984); Andre v. Pomeroy, 35 NY2d 361, 362 NYS2d 131 (1974). In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to eliminate any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 853, 487 NYS2d 316 (1985); Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 (1986). Indeed, the moving party has the burden to set forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 (1979).

Leave to amend a pleading pursuant to CPLR §3025(b) should be freely granted absent prejudice or surprise resulting from the delay (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959, 471 NYS2d 55, 56 [1983]; Probst v. Cacoulidis, 295 AD2d 331, 743 NYS2d 509 [2nd Dept., 2002]). While the decision to allow or disallow an amendment is left to the court's sound discretion (see Edenwald Contr. Co. v. City of New York, 60 NY2d at 959, 471 NYS2d at 56), a court need not grant leave to amend a pleading where the proposed amendment is palpably without merit (see Probst v. Cacoulidis, 295 AD2d at 332, 743 NYS2d at 51; Reuter v Haag, 224 AD2d 603, 638 NYS2d 673 [ 2nd Dept., 1996]).

The branches of SDR's motion and Spitzer's cross-motion for summary judgment dismissing the complaint based on plaintiff's claimed failure to prove requisite ownership of the 183/185 Property are denied. Plaintiff's copy of the applicable deed (Exhibit A to plaintiff's cross-motion) indisputably verifies a lawful and proper transfer of that portion of the 183/185 Property from MMG Residence Trust to Mindel Res. which occurred on January 12, 2003, well before the commencement of this action, but which the New York City Registrar inadvertently failed to timely record. This ministerial failure, which has been corrected as of October 16, 2007, did not adversely affect that property transfer. Stated differently, Mindel Res. is the right party at the right time and has legal [*3]standing to prosecute this action. This court grants the branch of plaintiff's cross-motion for leave (see proposed amended complaint at Exhibit E to plaintiff's cross-motion) to amend the complaint to reflect the correction of certain pleading errors, which now accurately identifies plaintiff's ownership interest in the 183/185 Property and its correct block/lot locations (see ¶¶ 2-3 of the Amended Complaint).

The branches of SDR's motion and Spitzer's cross-motion for partial summary judgment dismissing plaintiff's punitive damages claim (6th cause of action) is granted.

Punitive damages are warranted where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness (see Fernandez v Suffolk County Water Auth., 276 AD2d 466, 467, 714 NYS2d 91, 92 [2nd Dept., 2000]). Punitive damages ordinarily may be awarded only "in cases where the wrong complained of is morally culpable, or is actuated by evil or reprehensible motives, not only to punish the defendant, but to deter him, as well as others who might otherwise be so prompted, from indulging in similar conduct in the future." (Walker v. Sheldon, 10 NY2d 401, 404, 223 NYS2d 488, 491 [1961]). Punitive damages generally are not recoverable where the alleged wrong was a private wrong as opposed to one aimed at the public generally (Garrity v. Lyle Stuart, Inc., 40 NY2d 354, 386 NYS2d 831 [1976]).

Plaintiff acknowledged a pleading irregularity in alleging a separate cause of action for punitive damages and its proposed amended complaint eliminates its sixth cause of action but includes its claim for punitive damages as part of its prayer for general relief in its ad damnum clause. Although discovery has not been completed, this court can discern no additional information which would corroborate plaintiff's conclusory allegations that SDR, with Boga's and Spitzer's collaborative assistance, knowingly and intentionally encroached on the 183-185 Property or acted in a manner punitive damages is designed to punish. In searching the record and after personally inspecting the 181 Property and 183/185 Property and the renovations in dispute, this court finds this is simply an action to resolve a private dispute between two adjoining property owners. Even if plaintiff is ultimately successfully, this court would find defendants' collective conduct would never be construed under any circumstances to rise to the level of conduct needed to justify punitive damages. Thus, it would be improvident for this court to exercise its discretion to grant that branch of plaintiff's motion for leave to amend the complaint to even add a demand for punitive damages and that branch of plaintiff's cross-motion seeking such relief is denied.

The proposed amended complaint (Exhibit E to plaintiff's cross-motion) merely adds two paragraphs (¶¶ 18 and 19) identifying Edson, a contracting company and "Jane Doe," an unidentified landscaper and adds their names with defendants throughout the other pleaded causes of action. No other facts are pleaded with any particularity as to the activities these proposed new party defendants actually engaged in which would come within the ambit of RPAPL §871 or plaintiff's other common law claims asserted against SDR, Boga and Spitzer.

For guidance, plaintiff refers the court to ¶¶26-33 of Dr. Joel Mindel's affidavit ("Mindel Aff.") in support of plaintiff's cross-motion. Generally, Dr. Mindel claims in his discussions with both Edson and the unnamed landscaper, each revealed he/she was [*4]aware of plaintiff's lawsuit against SDR, with whom each contracted to perform work on the 181 Property. Affiant claims he asked Angelo Caputo, an Edson principal, to cease doing any work "on the walls in the rear of the Dello Russo Premises that adjoin . . . [his] property. . . [and] to the encroaching structures that are the subject of this lawsuit

. . ." (bracketed matter added)(Mindel Aff. at ¶30) until this litigation was resolved. Mindel does not state whether he made a similar request to "Jane Doe," but does accuse the unnamed landscaper of placing "permanent planters and an irrigation system on top of the [shared] concrete wall . . ." after this lawsuit ensued (Mindel Aff. at ¶32).

Reading this section of the Mindel Aff. together with the proposed amendment to add these party defendants does not save this situation. Plaintiff has not proffered any facts to show what work Edson "intentionally" or "wilfully" performed after Mindel Res. initiated the lawsuit to advance the progress of the encroaching structures. As to "Jane Doe's" work, this court's field inspection revealed some non-permanent planter containers on top of the concrete wall in issue with a thin black hose traversing the top of this wall which plaintiff characterizes as an "irrigation system." It was readily apparent to this court that these items could easily be removed, if legally warranted.

What is significant is that plaintiff conceded this proposed complaint amendment to add these party defendants was contrived to bolster its punitive damages claim against the defendants (see Mindel Aff. at ¶27), a claim which this court has already found meritless. Accordingly, plaintiff's showing that the proposed defendants' actions, even if arguably particularized and true, not only does not rise to the level of warranting punitive damages, but also does not establish any cause of action otherwise pleaded against the defendants against Edson and "Jane Doe." The branch of plaintiff's cross-motion for leave to add these party defendants is denied (see generally, Tornello v. Beaver Brook Associates, LLC, 8 AD3d 7, 777 NYS2d 490 (1st Dept., 2004).

The branch of Spitzer's summary judgment cross-motion grounded on an affirmative defense of adverse possession and adopted by SDR is denied at this time, without prejudice. Preliminarily, Spitzer's opinion affidavit in support of his cross-motion is conclusory and confusing. Without questioning this defendant's credentials as a licensed architect, nonetheless, the opinion affidavit does not fully explain how Spitzer was able to date the concrete wall in issue nor are his conclusions supported by any building plans, surveys or other competent documentation generated in the ordinary course of business. Plaintiff's counsel points out that terms such as "wall" and "extension" are used interchangeably and the alleged encroaching "extension" in issue, a 2005 addition SDR made with Spitzer's and Boga's assistance, is not the "extension previously in existence, as the slanted plane of the wall carries back to the original house face. . ." (Spitzer Aff. at ¶ 7 in support of cross-motion). Based upon this record not fully developed at this juncture, inter alia, a material question remains whether a previously existing roof extension annexed to SDR's rear townhouse and built on the concrete wall dividing the 181 Property and the 183/185 Property prior to both parties taking respective title to these adjoining properties legally allowed SDR to complete her 2005 extension similarly utilizing the wall in issue.

Finally, plaintiff's branch of its cross-motion for Rule 130 sanctions against the defendants for failing to proceed with plaintiff's scheduled deposition is denied. A [*5]review of the respective correspondence annexed to the motion/cross-motion papers shows that this private dispute between these two adjoining property owners is a serious one. No less than six law firms have been retained to represent the parties' respective interests and service this litigation and each side seemingly has "dug in" to assert their respective rights. What is clear to this court is that both parties have rushed to do battle to advance their respective positions and this round of motion practice could have easily been avoided had both parties not been so entrenched in their positions (e.g., defendants' meritless wrong party defense and plaintiff's meritless punitive damages claim). Without belaboring the underlying circumstances, plaintiff's inconvenience resulting from the cancelled deposition could have been avoided. And needless to say to plaintiff's learned counsel, a summary judgment motion does stay discovery. In any event, it is suggested that a truce be called during the discovery phase of this litigation. Perhaps the parties, "after taking a deep breath," will work out a mutually agreed-to resolution. Accordingly, it is

ORDERED, that the branch of plaintiff's cross-motion for leave to amend its complaint is granted to the extent of permitting the correction of certain pleading errors to accurately identify plaintiff's ownership interest in the 183/185 Property and its correct block/lot locations. The amended complaint shall be deemed served and filed and defendants are directed to serve and file their respective pleadings (i.e., amended answers, replies, etc.) within 30 days of the issuance date of this Decision and Order; and it is further

ORDERED, that the branches of SDR's motion and Spitzer's cross-motion for partial summary judgment dismissing plaintiff's punitive damages claim (6th cause of action) are granted and plaintiff's cross-motion for leave to amend its complaint to add a punitive damages claim in its ad damnum clause is denied; and it is further

ORDERED that the branch of plaintiff's cross-motion for leave to amend its complaint to add new party defendants is denied; and it is further

ORDERED that the branch of Spitzer's cross-motion for summary judgment dismissing plaintiff's complaint grounded on an affirmative defense of adverse possession is denied, without prejudice; and it is further

ORDERED that the branch of plaintiff's cross-motion for sanctions against the defendants for failing to proceed with plaintiff's scheduled deposition is denied; and it is further

ORDERED that the parties are directed to appear on March 18, 2008 at 9:30 a.m. at I.A.S. Part 1, Room 1127B, 111 Centre Street, New York, New York, for a status conference to resolve outstanding issues prior to the filing of a Note of Issue.

This constitutes this court's Decision and Order. Courtesy copies of same have been provided to counsel for the parties.

DATED: New York, New York

February 11, 2008

___________________________

HON. MARTIN SHULMAN, J.S.C. Footnotes

Footnote 1: On February 6, 2008, this court conducted a field inspection to obtain a clearer perspective of the scope and breadth of the alleged encroaching renovations in issue.