Todd Rotwein, D.P. M., P.C., v Nader Enterprises, LLC

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Todd Rotwein, D.P. M., P.C., v Nader Enterprises, LLC 2011 NY Slip Op 32577(U) September 22, 2011 Supreme Court, Nassau County Docket Number: 454-08 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ----------------------------- --------------------------------------)( ............ ... ....... .... .... .......... ........ .... ..... ........... ......... ............... ...... ............ ...... ... ............ .... ......... ........ ... ........... ............ ....... [* 1] SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court TRIALIIAS PART: 20 TODD ROTWEIN, D. M., P. C., NASSAU COUNTY Plaintiff, Inde)( No: 454Motion Seq. No: 7 -against- Submission Date: 8/29/11 NADER ENTERPRISES, LLC AND REZA NABA VINEJAD aIa REZA NABA VI, Defendants. -------------------------------------------------------------------- x Papers Read on this Motion: Notice of Motion, Affirmation in Support, Affidavit in Support and Exhibits.... M em 0 ran dum of Law............ ... Affirmation in Opposition and Exhibits................................................................... Memorandum of Law in Opposition........................................................................ Reply Affirma tio n an d Exhih its.......... Rep Iy M em 0 rand urn of Law.. ....... ... ....... ....... ........ This matter is before the cour on the motion by Plaintiff Todd Rotwein, D. , P. Rotwein" or "Plaintiff' ) filed July 8, 2011 and submitted on August 29 , 2011. For the reasons set fort below , the Cour denies Plaintiffs motion. BACKGROUND A. Relief Sought Plaintiff moves for an Order granting Plaintiff leave to file an amended complaint asserting a cause of action for actual parial eviction. Defendants oppose Plaintiff s motion. [* 2] B. The Paries History This action has been the subject of prior decisions by the Cour , including a decision dated March 3 , 2011 (" 2011 Decision ) in which the Cour denied Defendants ' motion for sumar judgment. The Cour incorporates the 2011 Decision herein by reference. As outlined in the 2011 Decision , this action involves Plaintiff s breach of lease claim against Defendants with respect to propert located at 131 Fulton Avenue , Hempstead , New York. Plaintiff fied its Amended Verified Complaint on or about March 7 , 2008 which contains allegations regarding Defendants ' alleged breach of the paries ' lease agreement by, inter alia failing to provide heat and elevator service. The Complaint contans six (6) causes of action: 1) breach of the lease contract against the LLC , 2) constrctive eviction against the LLC 3) breach of the waranty of quiet enjoyment against the LLC , 4) creation of a nuisance against the LLC , 5) fraudulent inducement against Reza based on his alleged misrepresentations that he was using his own money to modernize the Premises and fill its vacant tenancies on which Plaintiff relied to its detrment, and 6) for a permanent injunction against the LLC requiring specific performance under the applicable lease and rider until Plaintiff is able to remove its business from the Premises. Defendat LLC has asserted counterclaims against Plaintiff, based on its claims that Plaintiff was in default of the Lease in light of his failure to pay the required rent and obtain the required general liabilty insurance policy. Defendants submit that the Lease terminated on December 31 , 2007 and Plaintiff s continued use and occupancy of the Premises is as a holdover tenant. Defendants allege that the LLC has suffered damage as a result of Plaintiffs witholding of the Premises. Defendants seek a judgment on the counterclaiml) awarding possession of the Premises to the LLC; 2) excluding Plaintiff from possession of the Premises; 3) issuing a warant removing Plaintiff from possession of the Premises; 4) awarding the LLC rent arears; 5) dismissing Plaintiff s action; 6) setting off any damages due to Plaintiff in consideration of Plaintiffs negligence; and 7) awarding counsel fees to Defendants. In support of Plaintiff s motion to amend, Plaintiff s counsel affirms that the relief sought in the sixth cause of action, seeking injunctive relief under the lease , is now moot in light of the fact that Plaintiff has moved out of the Premises. Plaintiff provides a copy of the proposed [* 3] amended complaint (" Proposed Complaint" ) (Ex. B to Scott Aff. in Supp. ) it is requesting permission to fie. parial eviction The Proposed Complaint contains a new sixth cause of action alleging actual based on Defendants ' alleged failure to provide adequate elevator service at the Premises. Plaintiff seeks compensatory and punitive damages , as well as a permanent injunction requiring specific performance of repairs and maintenance related to inter alia heating system , oil the central ta and elevators. Plaintiffs counsel submits that Defendants ' failure to provide adequate elevator service at the Premises has been an issue throughout this litigation , and provides submissions related to prior motions before the Cour that have addressed this issue. Plaintiff also provides records from the Vilage of Hempstead Building Deparent (id at Ex. E), which Plaintiff attched as exhbits to its submission on a prior motion, reflecting problems with the elevators at the Premises between 2004 and 2008. In opposition , Defendants ' counsel affrms that Plaintiff has filed its Note of Issue , and the tral of this action is scheduled to commence on November 1 2011. Defendants submits that Plaintiff has had ample opportity to plead the additional cause of action he now seeks to add and the Cour should not permit the amendment at C. The Paries ' ths late stage of the proceedings. Positions Plaitiff submits that the Cour should permit the requested amendment , given that 1) the proposed amendment asserts no new facts , but merely asserts a new legal theory of recovery; 2) the proposed amendment is meritorious , as Defendants ' alleged failure to provide elevator service may constitute an actual parial eviction; and 3) in light of the fact that the condition of the elevator has been raised in prior motions before the Cour, there is no prejudice to Defendants. Defendants oppose Plaintiff s motion on the grounds that 1) Defendants will be prejudiced by the proposed amendment, given the history ofthis litigation and its tral-ready postue; 2) the proposed amendment is insufficient as a matter oflaw; and 3) Plaitiff has failed to explain its delay in seeking leave to amend. With respect to the merits of the proposed amendment, Defendants note that the deposition transcript of Plaintiff (Ex. B to Weinberger Aff. in Opp. ) does not contain the words [* 4] expel" or " expulsion" because the focus of the deposition of Plaintiff was on constrctive eviction , as pleaded in the Complaint, not actual eviction. Defendants submit that if the Complaint had pleaded actual eviction , they would have questioned Plaintiff about the alleged expulsion, and other issues relevant to that cause of action. Defendants also argue that they would be prejudiced by the proposed amendment because they would be deprived of the opportity to seek dispositive relief, noting that their prior motion for sumar judgment addressed only constructive eviction. Defendants submit that such a dispositive motion would be successful , given Plaintiff s failure to allege a sufficient interference with his tenancy to support a parial actual eviction , and the fact that the proposed cause of action is time-bared , as the statute of limitations is one year and Plaintiff has not requested that the Defendants argue fuer that the Cour should deny nunc pro tunc. amendment be granted Plaintiffs motion , in light of Plaintiffs failure to explain its delay in requesting the proposed amendment. RULING OF THE COURT A. Leave to Amend Leave to amend is to be freely given, absent prejudice or surrise directly resulting from the delay in seeking leave , uness the proposed amendment is palpably insuffcient or patently Aurora Loan Services, LLC devoid of merit. Lucido citing CLR 9 3025(b) and v. v. Thomas 70 A.D.3d 986 987 (2d Dept. 2010), Mancuso 49 A. D.3d 220 , 222 (2d Dept. 2008). motion for leave to amend a complaint is made long after the case is certified for Where tral , however, judicial discretion in allowing the amendment should be discrete , circumspect prudent and cautious , and where the motion is made on the eve of tral , judicial discretion should Tesser be exercised sparngly. 2010), quoting Morris v. v. Allboro Equipment Co. 73 A.D.3d 1023 , 1026 (2d Dept. Queens Long Is. Med Group, P. 2008). If a grant of leave to 49 A. D.3d 827 828 (2d Dept. amend under such circumstances causes prejudice or surrise , the grant of leave constitutes an improvident exercise of discretion , especially in cases where there is no reasonable excuse offered for the delay in seeking leave to amend. Funding Corp. v. Reynolds 41 A. D.3d 524 , 525 (2d Dept. 2007) and Corp. 57 A. D.3d 889 , 892 (2d Dept. 2008). citing Velez v. Countrywide South Nine Realty [* 5] Actual Parial Eviction B. An actual eviction occurs when a landlord wrongfully ousts a tenant from physical Whaling Wilie possession of the demised premises. Partners, Inc. , Inc. inter alia , Barash 17 A.D.3d 453 (2d Dept. 2005), citing, Real Estate Corp. s Roadhouse Gril v. v. Sea Gulls Pennsylvania Term. 2d 77 , 82- 83 (1970). Where the tenant is ousted from only a portion 26 N. of the demised premises , the eviction may stil be considered actual , if only parial , and suspend the tenant' s obligation to pay rent. citing, at 83- 84. Parial inter alia , Barash actu eviction requires that the tenant be physically prevented from using a portion of the leased premises. Pacifc Coast supra at 83. Silks, LLC v. 247 Realty, LLC 76 A. D.3d 167 , 172 (1 See Universal Communications Network, Inc. v. 229 st Dept. 2010), citing Barash West 28 Owner LLC , 85 D.3d 668 (pt Dept. 2011) (plaintiff failed to allege actual eviction because it did not plead that it was wrongfully ousted from physical possession of the leased premises). The Cour denies Plaintiffs motion based on 1) the tral-ready postue of ths action 2) the prejudice to Defendants of the proposed amendment , given that they have conducted discovery, including the deposition of Plaintiff, based on the causes of action in the Complaint and 3) the absence of a reasonable explanation for Plaitiff s delay in seeking the amendment. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. The Cour reminds counsel for the paries of their required appearance before the Cour for a Pre-tral Conference on October 21 2011 at 9:30 a. ENTER DATED: Mineola, NY September 22 , 2011 ENTERED SEP 3 0 2011 NASSAU COUNTY couN CLI." OFfIC

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