Goodman v Terrence Lowenberg
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Goodman v Terrence Lowenberg 2013 NY Slip Op 30134(U) January 23, 2013 Supreme Court, New York County Docket Number: 401899/2009 Judge: Cynthia S. Kern 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. SCANNED ON 112512013 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PART PRESENT: Justice Index Number : 401899/2009 GOODMAN, DALE INDEX NO. VS. MOTION DATE LOWENBERG, TERRENCE SEQUENCE NUMBER : 003 MOTION SEQ. NO. DECLARATORY JUDGMENT The following papers, numbered I to Notice of Motion/Order to Show Cause Answering Affidavits - Exhibits , were read on this motion tdfor -Affidavits - Exhibits IW s ) . IN O W Upon the foregoing papersrit is ordered that this motion is P ***e * , UNFILED JUDGMEdT IThis judgment has not been entered by the County Clerfr @Id notice of entry cannot be sewed based hereon. To &%hm r V ky bunsel or authorized representatjve must in person atthe Judgment Clak's Desk (Roan PK . 1 CHECK ONE: ..................................................................... ', CHECK AS APPROPRIATE: 3* CHECK IF APPROPRIATE: ........................... MOTION IS: [13 CASE DISPOSED GRANTED 13DENIED ,J.S.C. NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 0SUBMIT ORDER ................................................ aSETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT aREFERENCE [* 2] Plaintiff, -against- 2--- Index No. 40 1899/2009 .yx" - DECISION/ORDER Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for : Papers Notice of Motion and Affidavits Annexed.................................... Answering Affidavits...................................................................... Cross-Motion and Affidavits Annexed.. ......................................... Answering Affidavits to Cross-Motion........................................... Replying Affidavits...................................................................... Exhibits...................................................................................... Numbered 1 2 3 4 Plaintiff, who is pro se, commenced this action asserting several claims against defendants based upon defendants allegedly improper conduct as former owners of the building where she resides. Plaintiff now moves pursuant to CPLR 6 3212 seeking an order granting summary judgment on her first cause of action and issuing a declaratory judgment that plaintiff owes no money to defendants stemming from unpaid rent. For the reasons set forth below, plaintiffs motion is granted in part. The relevant facts are as follows. Plaintiff resides at 420 East 66* Street, New York, NY (the "Premises"). From approximately May 2007 to September 201 1, defendants 420 East 66 [* 3] Realty LLC,Icon Realty Management LLC and The Icon Group LLC (collectively referred to herein as defendant business entities ) owned and managed the Premises. Defendant Terrance Lowenberg ((LLowenberg )is, and at all relevant times was, a managing member of Icon Realty Management LLC. It is unclear what defendant Todd Cohen s relationship is to plaintiff or to the defendant business entities. According to the Resident Ledger Report (the Ledger ) kept by the defendant business entities, defendant business entities wrote-off a portion of plaintiffs alleged unpaid rent on two occasions. An entry on December 10,2008 remarks Bad Debt Write Off and shows a $30,074.50credit to plaintiffs s account, leaving a $9,500.00 balance. Additionally, on f November 17,201 1, the Ledger notes Write O f - Sold Building and shows a $24,323.20 credit to plaintiffs account, leaving a $0.00 balance. On or about September 7,201 1, defendant business entities sold the Premises to nonparty Chase East 66th LLC ( Chase ) and assigned and transferred all their ( rights, title and interests in, to and under the Leases [at the Premises] to Chase. On a motion for summaryjudgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvurez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986). Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact. See Zuckerman v. City o New York, 49 f N.Y.2d 557,562 (1980). Once the movant establishes aprimafacie right to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on w i h he rests his hc claim. Id. Here, plaintiffs motion for summaryjudgment is granted to the extent that this court [* 4] finds that defendants no longer have any right to collect past-due rents allegedly owed by plaintiff. By defendants own admission, the right to collect the plaintiffs debt belongs to nonparty Chase 66* R a t LLC, or to another unknown party if Chase 66 Realty LLC has assigned ely that right to another party. This argument is supported by the Assignment and Assumption of Leases attached to defendants response papers, wherein defendants assigned and transferred all their rights, title and interests in, to and under the Leases [at the Premises] to Chase. Accordingly, defendants herein no longer have any right to collect the alleged past-due rents of plaintiff. However, plaintiff has failed to establish that the alleged debt owed to defendants at the time they sold the premises was forgiven. While plaintiff argues that the notation of write-off on the Ledger demonstrates that defendants forgave her debt when they sold the premises, she cites no authority supporting the proposition that a write off on an accounting ledger, by law, equates to debt forgiveness. As argued by defendants, these are two unrelated concepts. Writing off a bad [sic] debt is simply an accounting entry that is used to reflect an opinion by the creditor that the debt is not collectible. However, the debt still exists and may be collected if it is later learned that the debt can be collected. Debt forgiveness, on the other hand, is a cancellation of the debt so that the debt no longer exists, Accordingly, plaintiff has provided insufficient evidence to establish that she did not owe, nor does she owe, money to defendants. Additionally, plaintiff s argument, stated for the first time in her reply papers, that it was proven in the lower court that there was debt forgiveness by defendants is without merit. It is well established that [tlhe function of reply papers is to address argument made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds for the motion. Dannasch v. Sifulco, 184 A.D.2d 4 15 (1 Dept [* 5] t' ' 1992). However, notwithstanding this principle, this fact w s neither proven by the stipulation, a nor is the stipulation applicable to this action. The stipulation explicitly states: "This stipulation has absolutely no bearing on and is without prejudice to Respondent Goodman's claims under Index No. 401899-2009 . , . presently being heard and commenced in Supreme Court, New York County. This stipulation relates only to Petitioner Chase East 66* LLC." Accordingly, plaintiff's motion is granted to the extent that it is found that defendants no longer have a right to collect any past-due rents allegedly owed by plaintiff* Thus, it is hereby ADJUDGED and DECREED that defendants do not have a right to collect the past-due rent at issue herein from plaintiff, This constitutes the decision and order of the court. Dated: \\&?\\% Enter: Y J.S.C. t-'" - UNFILED JUDGMENT "m-4 fils judgment has not been entered by the County Clerk and ratice of entry cannot be senred Lxqial hereon, To d&me&y* camel OT a u t t r o m representative must & =U a mJwW- W% $ a m l I b oedc (Room
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