Breytman v Wiener Realty LLC

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[*1] Breytman v Wiener Realty LLC 2009 NY Slip Op 51187(U) [23 Misc 3d 1138(A)] Decided on June 10, 2009 Supreme Court, Kings County Starkey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 10, 2009
Supreme Court, Kings County

Alexander Breytman, Plaintiff,


Wiener Realty LLC a/k/a Wiener Realty co., et al., Defendants.


For the Plaintiff(s):


2940 Ocean Parkway, Apt. 8S

Brooklyn, New York 11235

For the Defendant(s):


600 Third Avenue

New York, New York 10016

James G. Starkey, J.

Plaintiff Alexander Breytman by three separate motions seeks (1) leave to amend his complaint, (2) an order vacating the dismissal of the instant action, and (3) an order "striking a notice of entry." By cross motion, defendants Wiener Realty LLC, Olinville Realty LLC, Pinnacle Bronx LLC, Joel Wiener, Harry Hirsh, Effie Galata, Donna Fabrizio,

Pat Forester, Sadat Rugosa, Jaffe & Asher LLP, Mark Monaco and Ira Glauber seek a protective order barring plaintiff from further litigation. All motions are consolidated for disposition herein and, upon consolidation, the motions by plaintiff are denied and the cross motion by defendants is denied without prejudice.


This action arises out of plaintiff's eviction from his apartment in 2003 by Olinville Realty, LLC (hereinafter "Olinville"). Without summarizing the long and tortuous history of this case, suffice it to say that Olinville is now the sole defendant remaining.

In his motion to amend the complaint, plaintiff notes the well-settled proposition that leave to amend is "freely given" and that there is nothing to prevent the court from allowing him to serve an amended complaint. In defendants' opposition papers, they fault plaintiff for failing to serve the motion at least 16 days before the return date and for failing to specify "what matters he seeks to add or delete from his complaint."[FN1]

In his motion for an order "striking a notice of entry", plaintiff explains that he found a notice of entry of a December 11, 2007 order, but he denies receiving copy of same by mail.[FN2] In opposition thereto, defendants again note that the motion was "untimely served" and, in addition, they assert that, even if the notice of entry had been sent to the wrong address, "there is no prejudice" since plaintiff has appealed the order.

In his third motion, plaintiff characterizes the order of December 11, 2007 as "improper and unfair and unconstitutional" and seeks to vacate the order upon that basis and upon the further ground that it is "illegal and unethical" for defendants' attorneys (Jaffe and Asher LLP) to represent them. In their opposition papers, defendants characterize plaintiff's arguments as frivolous and explain that, at a prior motion calendar call, Jaffe and Asher LLP spoke on behalf of Wiener Realty LLC and related entities "solely for purposes of the motion hearing" and because the interests of all of defendants were unified, namely they all wished to see the complaint dismissed.

In their cross motion (to which no opposition papers have been received), defendants denounce the "prolonged history of baseless litigation" by plaintiff and request that this court issue a protective order preventing plaintiff from commencing any further litigation without prior court approval.


Whether or not the motions by plaintiff were properly served pursuant to CPLR 3214(b), this court will consider them on more substantive grounds and, upon such consideration, denies all of them in their entirety.

If, as plaintiff maintains, he was not served with a copy of the order of December 11, 2007 with notice of entry, he would not be prejudiced as a result since it would merely mean that his time to take an appeal from the order would not have run. See Advocates for Plattsburgh, Inc. v Steuben County Indus. Development, 48 AD3d 1157, 1158, 851 NYS2d 759 (4th Dept. 2008).[FN3] Therefore, the motion to "strike a notice of entry" is denied.

As plaintiff correctly claims, leave to amend a pleading should be freely given in the absence of prejudice or surprise. However, the court is required to examine the underlying merit of the proposed amendment as a palpably meritless amendment will not be permitted. See Efstathiou v. Cuzco, LLC, 51 AD3d 712, 858 NYS2d 712 (2nd Dept. 2008). Absent either the proposed amendment, or an affidavit of merit made by a person with personal knowledge of the facts involved in the proposed amendment, the court is without the means to make such a determination. See Ferdinand v Crecca & Blair, 5 AD3d 538, 774 NYS2d 714 (2nd Dept. 2004). Here, plaintiff has failed to provide either and accordingly, his motion for leave to amend is likewise denied.

Lastly, plaintiff's motion for an order vacating the dismissal is without merit. Aside from plaintiff's misguided argument that defendants' attorneys did and continue to do something improper merely by appearing as defendants' counsel in this action, plaintiff has offered no other ground for such relief.

As to defendants' cross motion, where it is clear that a litigant is guilty of a clear abuse of the court's resources by making meritless motions, an appropriate remedy is to enjoin him or her from initiating further litigation against the same party without prior court approval. See McQuillan v St. Vincent's Hosp., 8 AD3d 148, 778 NYS2d 280 (1st Dept. 2004). Whether or not plaintiff has met such a threshold at this time, the cross motion will not be considered in the absence of proof of proper service of the application upon plaintiff. Defendants' opposition papers were, according to the affidavits of service, mailed to both an address in Brooklyn and one in Manhattan, the latter of which defendants concede may be incorrect. The cross motion was only sent to the Manhattan address and the complaint bears a Brooklyn address for plaintiff. Moreover, plaintiff has not submitted any opposition to the cross motion. Accordingly, the cross motion is denied with leave to renew with service to be made at both addresses.


In light of the above, plaintiffs motions are denied and defendants' cross motion is denied without prejudice. This constitutes the decision and order of the court.


J.S.C. Footnotes

Footnote 1:Although defendants assert that this action was dismissed by order dated December 11, 2008, the order was actually dated December 11, 2007.

Footnote 2: Notice of entry was sent to 11 Fort George Hill in Manhattan. On all of plaintiff's papers herein he uses the address 2940 Ocean Parkway in Brooklyn.

Footnote 3: According to defendants, that order was indeed appealed by plaintiff.

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