Benitez v Neighborhood W. 126th St. LLC

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Benitez v Neighborhood W. 126th St. LLC 2011 NY Slip Op 33817(U) August 9, 2011 Sup Ct, New York County Docket Number: 113675/2010 Judge: Emily Jane Goodman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 811212011 [* 1] - I 1 - - - - - - - - - - - - Index Number I 1 36751201 0 ----I I/ INDEX NO. - BENITEZ, PEDRO L. MOTION DATE II/ I~EIGHBORHOOD WEST 126TH STREET SEQUENCE NUMBER : 001 MOTION SEQ. NO. MOTION CAL. NO. l DISMISS this J motion to/for - - - ----- ---- - - - - Notice of Motion/ Order t o Show Cause Answering Affidavits - Exhibits Replving Affidavits - Affidavits -- Exhibits ... - , ~ I Cross-Motion: PAPERS NUMBERED - - - /'. ~Cii~es ri NO Upon the foregoing papers, it is ordered that this motion [k I ,' , Check one: n-FINAL DISPOSITION Check if appropriate: I i fd' f ,4 ~ 4'0M-F INA 1-DIsPOsIT,0 4N N L l DO NOT POST [? SUBMIT ORDER/ JUDG. J.S. C. 1 rI L1 REFERENCE SETTLE ORDER/ JUDG. [* 2] P lai 11 tiffs, - against NEIGHBORHOOD WES I 126T STRIX T LLC, 1kfendnnts. lies, based on Failure to statc a claiiii bccause Delendant did not commence an action or proceeding which temiinated in hvor of PlaintifY. Although an administrative proceeding bcfore DHCK was ultimately resolved in Plaintill s favor, with a finding that Plaintiff was entitled to a rent srabilized lease, Defendant argues that because the proceeding was comrncnced by Plaintilf, a nialicious prosecution cause of action is not statcd. Moreover, although Defendant commenced a holdover proceeding against Plaintiff, which was marked off calendar in August 2009 (which Dcfcndant characteriLes as p i d i n g despite its admission that there is a current and active nonpayment proceeding), Dcfcndant argues that it could not have actcd with malice or lack of probable causc by commencing the holdovcr proceeding, bccause it was supported by DI ICR s determination, initially in Defendant s favor, Defendant also moves to dismiss the cause of action for punitive damages becausc it is not a separate claim, is merely an element of damages, and is, in any event, unsupported by the facts. Defendant iiirthcr states that it should bc entitled to an inquest on damages on its counterclaims because Plaintiff did not serve a reply to the counterclaims, as rcquired under CP1,R 3011. Plaintiff cross moves [or an cxtensiori oftiine to rcply to the counterclaims under CPLR 2004 and CPLR 3012(d), and explains that the reply was not previously filed because settlement negotiations were pending. Plaintiff notes ihal there is a strong prcfcrence fbr decisions on the merits and citcs a lack of prejudice. Plaintiff also explains that the malicious prosecution cause of. action states a claim based on the holdover proceeding, which was commenced by Defendant with [* 3] malice bccause Dcfcndant had no evidencc to iildicatc that Plaiiitiri did not residc in the apartment with his brothcr, nor evidcncc to indicate that thc brothers were unrclated. Plaintifi furthcr maintains that thc only reason why thc holdover was marked of[ calendar in August 2009 and was nevcr rcstored, was because of 9/7/10 DI ICR decision, fmorable lo Plaintiff-. Discussion On a motion to dismiss pursuant to CPLR 321 1 (a) (7), the court must accept Ihe facts as alleged in the complaint as true, accord plaintiffs the beneiit of evcry possible favorable inference, and detcrniine only whether thc facts as allcged lit within m y cognizablc legal theory (Leon v Martincz, 84 NY2d 83, 87-88 [1994J). Jlowever, bare legal conclusions, as well as Factual claims eitlicr inherently incredible or flally contradicted by documentary evidencc, are not presumed to be true and accorded cvcry hvorablc inference (Md: B,Joint Venture, Innc vLaurus Muster Fund, Ltd., 49 AD3d 258,260 [ 1st Dept 2008 1, uffdu.s mod 12 NY3d 798 [2009] [internal quotation marks and citation omitted]). Whcrc extrinsic evidence is submitted in connection with the motion, the appropriate standard ofreview (iswhether the proponent oi the plcading has a cause of action, not whether he has stated one ( I I G Crpilal LLC v Arch@elago, L I, C , 36 AD3d 401, 402 [lst Dcpt 20071 [inlernal quotation marks and citation omitted]). Dismissal of a complaint pursuant to CPI,R 321 1 (a) (1) is proper where the documcntary evidencc conclusively establishes a defense to thc asscrted claiins as a matter of law (Leon, 84 NY2d at 88). A claim for malicious prosccution accrucs when thc underlying action which is the basis fbr the claim is terminated in thc plaintill s favor by dismissal (see e.g. Nunez v Cily ofNew York, 307 AD2d 218, 210 [lst Dept 20031; Hc.~xd Goldnzan, Suchs & Cu., 281 A1Xd 247, 248 [lst Dcpt v 20011; LC;piiiule C ; U E S ~ ,270 AD2d 39,40 [lst Dept 20001). It requires that lcgal action be initiatcd v by the defendant, with nialice and without probable cause to believe it can succeed, along with a termination in plaintiil s favor (see Purdue Frederick C o. v Steudfust Ins. Co., 40 AD3d 285 [l st Dcpt 200 71). IHere, Defendant has not conclusively establiskcd its defense, as a inattcr of law. Bcfendant 2 [* 4] lias not establ i shed hat the holdover procccding cannot be effectively d d a proceeding which terminated in Plaintiff's favor (and Defendant has provided no c a m to support its argumcnt), because tlie procccding was never restored as it would have necessarily resulted in a finding in favor of Plaintiff. Nor has Ikfendant, who lias subniittcd no affidavits, conclusively establislicd thc lack of malice merely bccausc it commenced the holdover proceeding at a tiiiic when DHCR found, apparently on incomplete evidence, that Plaintiff was not eiititlcd to the protections of rcnt stabilization. Plaintiff has submitted evidence indicating thc questionable naturc of Defendant's failure to provide Plaintiff with a rent stabilized lease, and whether or not Ikfendant had tlie requisite intent caiuiot bc cstablished at this juncture. Nor can it be established that legal fees or punitive damages are not warranted as a matter of law, although llcfendant is correct in maintaining that punitive damagcs arc not a separate cause of action. The cross motion for Icave to serve a reply is granted (cvcn though Plaintiffs attorney should have sccurcd an cxtcnsion during settlement negotiations), based on the Court's prei'erence for dcciding caws on the merits. In any event, Defendant has not demonstrated a prima h i e case for a default judgment on its countcrclaims and therefore, even if the Court had not grantcd an extension, that aspect or the motion would liave to bc dcnied. For the foregoing reasons, it is hcrcby ORDERED that the niotion is dcnicd cxccpt to the extent that tlie Third Cause of Action (for punitive damages) is dismissed as a separate claim but is not dismissed from the WHEREFORE clausc as an elcment of damages; and it is further ORDERED that the cross motion is granted and Plaintifymay serve a reply to Defendant's counterclaim within 20 days after rcceipt of a copy of this Decision and Ordcr. This Constitutes the Uecision and Order of thc Court. t);,/,j (T Dated: August 9,201 1 ENTER: L , J.S.C. , -

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