Katz v Katz
Annotate this CaseDecided on March 29, 2011
Supreme Court, Kings County
Joseph Katz, RABBI LABEL KATZ AARON KATZ, and CHANI WEINSCHNEIDER, Plaintiffs,
against
Ruth Katz, Defendant.
06334/09
Attorney for Plaintiffs
Israel Goldberg, Esq.
Goldberg & Rimberg PLLC
115 Broadway - 3rd Floor
New York, NY 10006
(212) 697-3250
Attorney for Defendant
Roy I. Martin, Esq.
Hodgson Russ LLP
60 East 42nd Street
New York, NY 10165
(212) 661-3535
Francois A. Rivera, J.
By notice of motion filed on June 8, 2010, defendant Ruth Katz moves under motion sequence two, for an order: (a) pursuant to CPLR 3212, granting defendant summary judgment and dismissing the complaint against her in its entirety; (b) sanctioning plaintiffs by awarding defendant all of her costs and expenses, including reasonable attorney's fees, in connection with this action as a result of the fact that the complaint is frivolous and all material allegations against defendant were known by [*2]plaintiffs to be false when they commenced this action; and (c) granting such other and further relief as the court deems just and proper.
By notice of cross-motion filed on November 1, 2010, plaintiffs move under motion sequence number three, for an order: (a) denying the defendant's motion; (b) pursuant to CPLR 1001 and 1002 joining Elky Korb, Charles Katz, Martin Katz, Abraham Katz and David Katz as necessary party defendants; (c) pursuant to CPLR § 405, granting plaintiffs leave to amend the complaint in this matter to name as additional defendants the aforementioned persons; and, (d) for such other and further relief as the court deems just and proper. By decision and order dated January 7, 2011, the court denied plaintiffs' motion in its entirety.
Plaintiffs opposition to defendant's motion is contained within their cross-motion papers.
BACKGROUND
On March 17, 2009, plaintiffs filed a summons and complaint with the Kings County Clerk's Office under index number 6334/2009. The complaint contains thirty allegations of fact and three causes of action that allege, in sum and substance: that plaintiffs and defendant each own a ten-percent interest in the property located at 1541 51st Street, Brooklyn, New York (hereinafter the "subject premises"); that defendant, as manager of the subject premises, has failed to distribute income derived from the subject premises to plaintiffs; that defendant has failed to make an accounting to plaintiffs regarding income and expenses related to the subject premises; that defendant improperly co-mingled said income with her personal finances; and, that the defendant mismanaged the subject premises. On July 21, 2009 defendant filed an answer. On February 24, 2011 a note of issue was filed.
MOTION PAPERS
Defendant's motion papers consist of a notice of motion, her own and four other affidavits, an affirmation and six annexed exhibits, labeled A through F. There is an affirmation from Abraham Katz, her brother, who claims that he was solely responsible for the management of the subject premise. There are separate affidavits from Kalman Heller, Malka Lowinger, Reba Rose and Baila Rapaport, tenants of the subject premise, alleging that they never met or spoken with the defendant, or paid rent to her, or had any experience with her acting as a manager of the subject premises. The following exhibits were annexed. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a copy of defendant's verified answer. Exhibit C is a decision and order of the Kings County Surrogate by the Honorable Margarita Lopez Torres, dated March 27, 2009 pertaining to a contested probate proceeding involving plaintiffs and defendant. Exhibit D is a decision and order of Kings County Supreme Court Justice David B. Vaughan dated January 28, 2009, on a matter bearing index number 12264/2008. Exhibit E is a copy of the deed to the subject premises. Exhibit F is a copy of a memorandum from Abraham Katz to several people including all the parties to the instant action pertaining to [*3]the subject premises.
Plaintiffs' cross-motion consists of an attorney's affirmation, and an affidavit of Rabbi Label Katz.
In reply to plaintiffs' cross-motion and in further support of her motion the defendant submitted a memorandum of law, her attorney's affirmation and one annexed exhibit labeled G. Exhibit G is a decision and order of Kings County Supreme Court Justice Bernadette Bayne, dated May 11, 2010 on a foreclosure action bearing index number 11423/2009.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 [1993]).
"The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Stukas v. Streiter, - N.Y.S.2d , 2011 NY Slip Op 1832 [2nd Dept., 2011]; citing, Kolivas v Kirchoff, 14 AD3d 493, 493 [2nd Dept, 2005]). "Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (see, Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57 [1966])" (Stukas v. Streiter, supra).
Defendant moves for summary judgment on the grounds that the allegations in plaintiffs' complaint are false, namely, that she is not in fact the manager of the subject premises and therefore owes no duties to the plaintiffs. Defendant's motion is supported by her own affidavit, the affidavit of non-party Abraham Katz, and four sworn statements of alleged tenants of the subject premises. In sum and substance, defendant's own affidavit asserts that she has not managed the subject premises in any way. Similarly, the affidavit of Abraham Katz asserts that he has managed the property exclusively and that the defendant has had no involvement in that management. The four sworn statements by alleged tenants assert that they have not engaged in any business with the defendant regarding their tenancy at the subject premises. Accordingly, the defendant establishes a prima facie case for summary judgment pursuant to CPLR 3212.
If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 69 NY2d supra at 324). In opposition, the plaintiffs have submitted two separate affidavits by their attorney Samuel A. Ehrenfeld, two [*4]separate affidavits by plaintiff Rabbi Label Katz and a letter allegedly written by the defendant to plaintiffs. The affidavits restate the sum and substance of the complaint, namely, that the defendant is the manager of the subject premises and that she failed to make any accounting or distributions with respect to it. The letter, on its face, establishes that in 2005 the defendant was Managing Partner of a partnership agreement to which defendant and plaintiffs were partners, that defendant was responsible for collecting assets and paying debts related to the partnership and that the subject premises is part of the partnership.
It is clear that contested issues of fact exist as to whether the defendant managed the subject premises and whether she owed a duty to provide for an accounting and to distribute income relating to it. "It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of fact are raised and cannot be resolved on conflicting affidavits" (Brunetti v. Musalllam, 11 AD3d 280, 280 [1st Dept., 2004] citing, Millerton Agway Coop.v Briarcliff Farms, supra at 57, 61).
Accordingly, as contested issues of fact remain in the instant case, defendant's motion for summary judgment pursuant to CPLR 3212 is denied, without prejudice.
Pursuant to the Rules of the Chief Administrator of the Courts Part 130 as set forth in 22 N.Y.C.R.R. 130-1.1, the court may award to any party or attorney in a civil matter costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney fees, resulting from frivolous conduct.
For the purpose of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. If a court awards costs or sanctions, it must be done in a written decision setting forth the offending conduct, why that conduct has been deemed frivolous and why the amount awarded is appropriate.
The decision as to whether to award sanctions is within the sound discretion of the court (In the Matter of Rose Glatzer v Jay Glatzer, 73 AD3d 1173, 1175 [2nd Dept., 2010]; citing, Wagner v. Goldberg, 293 AD2d 527, 528 [2nd Dept. 2002]). In order to impose sanctions, the court must find that the offending party's motion asserts material falsehoods or is without legal merit and undertaken primarily to delay or prolong the litigation, or to harass or maliciously injure another (Premier Capital v. Damon Realty Corp., 299 AD2d 158 [1st Dept., 2002]). If a court awards costs or sanctions, it must be done in a written decision setting forth the offending conduct, why that conduct has been deemed frivolous and why the amount awarded is appropriate (Claudia Diamond v. Diamante, 57 AD3d 826, 828 [2nd Dept., 2008]; citing, Breslaw v. Breslaw, 209 AD2d 662 [2nd Dept., 1994]).
New York does not recognize a separate cause of action to impose sanctions for frivolous conduct in civil litigation (Schwartz v. Sayah, 72 AD3d 790 [2nd Dept., 2010] [*5]rather, a party must apply for such relief by motion upon the happening of specific conduct (Yankee Trails Inc. v. Jardine Ins. Brokers, Inc. 145 Misc 2d 282 [NY Sup. 1989]).
The defendant seeks sanction premised on a claim that the complaint contains material allegation of fact against her which the plaintiffs knew were false when they commenced the action. At this juncture the court cannot and has not determined that any material allegation of fact in the complaint is false. Therefore, the court cannot determine whether the plaintiffs' conduct is frivolous. It is noted that 22 N.Y.C.R.R. 130-1.1 is not the appropriate court rule because it applies to conduct after an action is commenced and not the act of commencing the action. The more appropriate section is CPLR 8303-a. Defendant's motion to impose sanctions on plaintiffs is denied without prejudice.
The foregoing constitutes the decision and order of the court.
Enter:
_________________________
J.S.C.
Enter Forthwith:_________________________
J.S.C.
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