Claremont E. 12, LLC v 189 Avec Moi LLC
Annotate this CaseDecided on December 4, 2008
Supreme Court, New York County
Claremont East 12, LLC, Plaintiff,
against
189 Avec Moi LLC, and Avec Moi Development LLC, Defendants.
602091/2008
Plaintiff's Attorney
Jerome Tarnoff, Esq.
Y. David Scharf, Esq.
Morrison Cohen, LLP
909 Third Avenue
New York, NY 10022-4731
212-735-8600
Defendant Avec-Moi Attorney
Martin Shaw, Esq.
Shaw & Associates
350 Fifth Avenue
New York, NY 10118
212-675-4535
Devenish Realty Co. Attorney
Aaron Zeisler, Esq.
Satterlee Stephens Burke & Burke, LLP
230 Park Avenue
New York, NY 10169
212-818-9200
Debra A. James, J.
Plaintiff Claremont East 12, LLC's oral application for recusal of the
undersigned in this action is denied. Upon the foregoing papers, non-party Devenish Realty Co.,
LLC's order to show cause is granted to the extent that it seeks to intervene in this action and is
denied to the extent that it seeks to cancel the Notice of Pendency and dismiss the fourth cause of
action for injunctive relief.
This action and show cause order were respectfully referred to the undersigned by Justice Ramos on the grounds that they are related to Claremont East 12, LLC v Devenish (Sup Ct, NY County, Index No.: 113655/2007) ("the Devenish action"), which is currently pending before this court. At oral argument of the motion, plaintiff Claremont East 12, LLC's attorney moved for recusal of the undersigned contending that the court would and could not be impartial since she had awarded costs against plaintiff's counsel in her January 25, 2007 decision and order dismissing Morrison Cohen LLP v Schlass (Sup Ct, NY County, January 25, 2007 Index No. 105003/2006) (the "Morrison Cohen action"), a case wholly unrelated to the action at bar. Counsel argued that this court would be unable to objectively preside over this action given such assessment of costs, which award was modified by the Appellate Division, First Department, (Morrison Cohen LLP v Schlass, 41 AD3d 122 [1St Dept 2007], lv denied 9 NY3d 812 [2007]) to the extent that it determined that costs were unwarranted since the choice of law argument made in the Morrison Cohen action, though properly rejected, was colorable.
The court denies plaintiff's application and declines to recuse herself.
First, there is no basis for plaintiff's concern that this court will not preside impartially since except for plaintiff's counsel having brought the Morrison Cohen action to her [*2]attention, the court made no connection and there is absolutely no connection between plaintiff counsel's pro se action that was dismissed with costs twenty-two months ago and either the case at bar or the Devenish action that is unarguably related to the case at bar. But for the instant application, this court would be totally unaware that the Appellate Division's modification of this court's order in the Morrison Cohen action involved counsel for the plaintiff at bar.
Moreover, by its Order dated January 25, 2007 in the Morrison Cohen action, this court intended merely to assess statutory costs of the motion against plaintiff's counsel, rather than attorney's fees as it was apparently interpreted. Plaintiff's counsel was well within his right to appeal that Order rather than provide this court with an opportunity to reconsider or clarify such award by way of a motion for reargument. In any event, this court appreciates and heeds the appellate court precedent in this regard.
Second, as plaintiff's counsel notes, though this court denied his client's motion for a preliminary injunction in the Devenish action, plaintiff's counsel does not represent plaintiff in that action, a further indication that the court's objectivity is in no way undermined by its award of costs in the unrelated Morrison Cohen action.
Finally, though the court views plaintiff's counsel application for recusal as permissible ardent advocacy for his client, a grant of the relief plaintiff seeks would create an appearance that the court had enabled forum shopping that would set a poor precedent in future actions before this court.
Turning to the papers on the show cause order at bar, this court shall grant non-party Devenish's motion to intervene pursuant to CPLR § 1012(a)(3).
The circumstances that warrant such intervention follow.
Non-party Devenish Realty Company LLC ("Devenish") owns two adjoining parcels of real property, each of which is leased by the parties to this action. Plaintiff Claremont East 12, LLC, leases the parcel known as 646-656 East 12th Street, New York, New York (Block 394, Lots 32 and 34) ("646 Property") and defendants 189 Avec Moi LLC and Avec Moi Development LLC leases 189-191 Avenue C (Block 349, Lot 36) ("189 Property").
In the summer of 2007, Devenish commenced construction of a building on the 189 Property (the "Construction Project"). In late September 2007, the Construction Project reached the height of the roof of the building on the 646 Property and began to cantilever steel beams from the Construction Project over such roof.
Less than two month later, plaintiff commenced the Devenish action, which is an action against Devenish Realty Company, LLC and its affiliates for breach of the 646 Property Lease in which [*3]Devenish is the landlord and plaintiff is the tenant. The Complaint in the Devenish action alleges that Devenish constructively evicted plaintiff, trespassed on its Premises, caused property damage in dismantling and destroying a Terrace that plaintiff had installed on the roof, and breached the 646 Property Lease in failing to obtain plaintiff's consent to the merger of the zoning lot of the 646 Property with that of the 189 Property as required under the New York City Zoning Resolution. With respect to its breach of lease claim, plaintiff alleges that the floor area and number of dwelling units of the Construction Project exceeds what is permissible under the New York City Zoning Resolution because the merger of the zoning lots that provides the basis for the building permit and that allowed the increased density was obtained without plaintiff's consent and therefore, in violation of the 646 Property Lease.
In the action at bar, plaintiff sued defendant Avec Moi and its affiliate as tenants under the 189 Property Lease (the "Avec Moi" action). In the Avec Moi Complaint, plaintiff contends that in concert with Devenish, defendants made false representations to the Department of Buildings to obtain excess Floor Area Ratio ("FAR") rights under the Zoning Resolution that increased the permissible size of the Construction Project and that therefore the Construction Project illegally cantilevers over the roof of the 646 Property. It alleges causes of action for tort, tortious interference with business relationship, nuisance, and property damage and seeks monetary damages and injunctive relief to remove the encroachment to the 646 Property.
Without peradventure, Devenish, as owner of the 189 and 646 Properties, must be permitted to intervene as the action involves the disposition of or a claim for damages for injury to the 646 Property and Devenish may be affected adversely by the judgment pursuant to CPLR § 1012(a)(3). To deny Devenish such relief would constitute reversible error. See Anam Realty Co v Delancey Garage, Inc., 190 AD 745 (1st Dept 1920).
With respect to Devenish's motion to cancel the notice of pendency, this court agrees with plaintiff that the decision in Lafayette Forwarding Company, Inc. v Rothbart Garage Operators, Inc., (205 App Div 247 [1st Dept 1923]) is controlling. The "interest that plaintiff asserts in the defendant's property" (here the alleged illegal encroachment on plaintiff's Premises) "is of a nature of which would limit the use and prevent the enjoyment thereof in the manner which the defendant has used or is attempting to use and enjoy it". Id. at 249-250. As in Lafayette Forwarding, "the object of the lis pendens is to retain the subject matter" (i.e., the 189 Property) "within the power of the court until the judgment is entered since otherwise, by successive alienations" (eg., through a sublet of the property by Avec Moi) "such judgment or decree would be rendered [*4]ineffectual." Lafayette Forwarding at page 249 quoting Moeller v Wolkenberg, 67 App Div 487 (1st Dept 1902).
As to Devenish's motion to dismiss plaintiff's fourth cause of action for injunctive relief [FN1] on the grounds that there is a prior action pending between the parties involving the same cause of action and issues pursuant to CPLR 3211(a)(4) and (5), the court notes that neither defendant in the Avec Moi action is a party to the Devenish action. Therefore, the action at bar does not constitute an action between the "same parties" pursuant to CPLR 3211 (a)(4). However, it is apparent to the court that it may well be appropriate for the two cases to be consolidated to foster judicial economy. Since the court is unsure that there is an identity of counsel in both actions, it shall direct counsel for Devenish to give notice to the parties in the Devenish action that the court is considering a consolidation motion and will conduct a hearing on that matter on the date set for the preliminary conference herein. Kent Development Co. Inc. v Liccione, 37 NY2d 899, 902 (1975); See Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:19; CPLR 3211 (a) (4); CPLR 602 (a). Accordingly, it is hereby
ORDERED that the oral application of plaintiff's counsel to recuse the undersigned is DENIED; and it is further
ORDERED that the motion of Devenish Realty Company, LLC., to intervene as party defendant in this action is GRANTED, that the summons and complaint is deemed amended to add Devenish Realty Company, LLC., as a defendant nunc pro tunc, and that the proposed Answer appended to the supporting papers of Devenish Realty Company, LLC., is deemed served and filed upon service of a copy of this order with notice of entry; and it is further
ORDERED that the motion of Devenish Realty Company, LLC., to cancel the notice of pendency and dismiss the fourth cause of action for injunctive relief is DENIED, and Devenish Realty Company, LLC., shall give notice to all parties in the Devenish action that the court shall consider consolidation of this action with Claremont East 12, LLC v Devenish (Sup Ct, NY County, Index No.: 113655/2007; and it is further,
ORDERED that the parties in this action and in the Devenish action shall appear for a hearing on consolidation of this action with Claremont East 12, LLC v Devenish (Sup Ct, NY County, Index No.: 113655/2007) and for a preliminary conference, in IAS Part 59, 111 Centre Street, Room 1254, on January 13, 2009, 9:30 AM. [*5]
This is the decision and order of the court.
December 4, 2008
Plaintiff's Attorney
Jerome Tarnoff, Esq.
Y. David Scharf, Esq.
Morrison Cohen, LLP
909 Third Avenue
New York, NY 10022-4731
212-735-8600
Defendant Avec-Moi Attorney
Martin Shaw, Esq.
Shaw & Associates
350 Fifth Avenue
New York, NY 10118
212-675-4535
Devenish Realty Co. Attorney
Aaron Zeisler, Esq.
Satterlee Stephens Burke & Burke, LLP
230 Park Avenue
New York, NY 10169
212-818-9200
Footnotes
Footnote 1: Plaintiff's fourth cause of action
for "injunctive relief" does not constitute a claim, but is, in fact, a remedy, and its allegations
somewhat duplicate plaintiff's first and third causes of action for trespass and nuisance.
Nonetheless, liberal pleading standards allow for such imprecision.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
