Samario, LLC v Eli

Annotate this Case

Download PDF

Samario, LLC v Eli 2013 NY Slip Op 32320(U) September 17, 2013 Sup CT, New York County Docket Number: 103196/2012 Judge: Lucy Billings 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY INDEXNO. I U 3 1 4 4 , W l ~ MOTION DATE MOTION SEQ. NO. The following papers, numbered 1 to h Notice of MotionlOrder to Show Cause Answering Affidavits Exhibits - , were read on this motion tolfor - Affidavits - Exhibits INo(s). INo(s). Replying Affidavits UDon the foregoing papers, it i odrd s ree- 002 INo(s). * - I 2,q: b 3, 5 ~*s-piw; , J.S.C. t-ry"3 %vs - ; --. i WNOIU-FiNAL DiSPOSiTiON ..................................................................... CASE EiSPOSED 0 2. CHECK AS APPROPRIATE: ........................... MOTION EGRANTED is: C DENIED 0GRANTED IN PART 0OTHER I ................................................ 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: 0SETTLE ORDER 0DO NOT POST c? FIDUCIARY APPOINTMENT [? REFERENCE 1. CHECK SNE: [* 2] Index No. 103196/2012 SAMARIO, LLC, Plaintiff DECISION AND ORDER - against - CATHI ELI, TOM J. ELI, MIKE V. ELI, ANTHONY ELI, VERONICA KASLOV, JENNIFER ELI, JOHN DOE, and JANE DOE, Defendants LUCY BILLINGS, J.S.C.: The court grants plaintiff's motion for partial summary judgment on its first and second claims for injunctive relief to the following extent, based largely on the parties' stipulations on the record July 2, 2013. C.P.L.R. § 3212(b) and (e). Defendant adult tenants Cathy Eli and Tom J. Eli have agreed to undertake the required alterations of apartment UEG, 31 St. Mark's Place, New York County, to remove a partition wall and sleeping loft.. Based on the opinion of defendants' architect, defendant shall complete the required alterations in compliance with all applicable statutes and regulations, including any required permits and approvals by the New York City Department of Buildings and removal of the debris from the work, within five months after service of this order with notice of entry. Within three business days after a written request by defendants, plaintiff shall sign and return to defendants any document necessary for any permit for the work. samario.152 1 Within five [* 3] calendar days after defendants receive any permit, they shall forward a copy of the permit to plaintiff's attorney. Plaintiff may inspect the apartment as provided in the parties' lease or upon defendants' consent. Defendants' architects, contractors, and their subcontractors shall carry insurance naming plaintiff an additional insured and covering any property damage, personal injury, or death arising from the work. Defendants shall indemnify plaintiff for any such damage, injury, or death. The court denies plaintiff's request to enjoin defendants to ensure that no mechanics' lien arising from the alterations work is placed on the apartment or 3 1 St;. Mark's Place. Plaintiff asks defendants to accomplish an impossibility. See N.Y. Lien Law § 34; West-Fair Elec. Contrs. v. Aetna Cas. & Sur. Co., 8 7 N.Y.2d 148, 156-57 (1995). The insurance coverage required above and defendant's indemnification obligation will compensate any l o s s to plaintiff occasioned by a mechanics' lien arising from the work. applicable to the deadline of five months, prohibiting any future motion by defendants for an extension of time, f o r any reason. Aff. of Ivy Alexander in Further Opp'n 6 (June 27, 2013). See Aff. of Ranakdevi Londoner in Further Supp. f 8 (June 25, 2013). The parties may contract for such a provision, in their lease or in a another agreement, but absent those contractual terms, such a provision is not legally required, samario.152 2 see, e.cT., Urban Archeolocw [* 4] Ltd. v. Dencorp Invs., Inc., 12 A.D.3d 96, 103-104 (1st Dep't 2004); Burqess Steel Prods. Corp. v. Modern Telecom, 205 A.D.2d 344, 346 (1st Dep't 1994), especially when plaintiff has not established that defendants are required to perform the alterations, but, at best, has shown only that defendants are required to allow the alterations. Finally, the court denies plaintiff's request for declaratory relief that defendants' noncompliance with this order will constitute an incurable nuisance, which would automatically violate the lease and provide grounds to evict or eject defendants, again even if defendants were not required to perform the alterations, but only required to allow them. This relief exceeds the claims in the complaint and the relief sought by the motion for partial summary judgment. If defendants disobey this order, however, plaintiff may seek remedies for their contempt and any further relief originally sought in the complaint. N.Y. Jud. Law §§ 753 (A)(l), 756, 773. The relief granted now resolves all plaintiff's claims for equitable relief. Plaintiff's only remaining claims in this action are for attorneys' fees and expenses and for damages due to defendants' actions. Such actions allegedly include causing the City of New York to issue notices of violations or impose liens against plaintiff, the apartment, or 31 St. Mark's Place; causing tenants, occupants, or their invitees at 31 St. Mark's Place to sue plaintiff; and causing plaintiff to lose rental income from 31 St. Mark's Place. Thus far plaintiff has not samario.152 3 [* 5] established that defendants actions have caused any such consequences. This decision constitutes the court s order and judgment on plaintiff s first and second claims. C . P . L . R . § 3212(b) and (e). The court will mail copies to the parties. DATED: September 17, 2013 Lq 0 - 4 ~ s LUCY B I L L I N G S , 4 samario.152 4 ... J.S.C.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.