NAR Apts. LLC v Ippolito

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NAR Apts. LLC v Ippolito 2013 NY Slip Op 33397(U) December 5, 2013 Supreme Court, New York County Docket Number: 107866/2010 Judge: Eileen A. Rakower 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] SCANNED ON 11212014 .. SUPREME COURT OF THE STATE OF N NEW YQRK COUNTY 1 PRESENT: PART e- Justice - Index Number : 107866/2010 NAR APARTMENTS LLC INDEX NO. vs. PATRICIA IPPOLITO SEQUENCE NUMBER : 005 MOTION DATE MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to - , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits INo(s). 1. 3 7 1N W . 4 IW s ) . J - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion is DEC 05.2013 COUNTY CLERK'S OFFICE NEW YORK .C. Dated: ..................................................................... 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................... !'?IOTllON1s: fiGRANTED 0DENEB CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER I. CHECK ONE: 2. 3. DO MOT POST NON-FINAL DISPOSITION 0G4A IN PART CmEF. 0SUBMIT ORDER FIDUCIARY APPOINTMENT 0REFERENCE [* 2] -. 1 SUPREME COURT OF THE STATE OF NEW YORK - N E W YORK COUNTY PART 15 PRESENT: Hon. EILEEN A. RAKOWER Justice NAR APARTMENTS LLC AND DOUGLAS WITTER, ET AL, Plaintiffs, -v- MOTION DATE DEC 05 2013 PATRICIA IPPOLITO, CPUNTY CLERKS OFFICE NEW YORK The following papers, numbered 1 to Notice of Motion/ Order to Show Cause CAL* No. were read on this motion for/to - Affidavits - Exhibits ... Answer - Affidavits - Exhibits I I I I 1 I 1 Replying Affidavits X Yes 5 MOTION SEQ. NO. Defen ant. Cross-Motion: 107866/2010 INDEX NO. PAPERS NUMBERED I,* 3 4 No Plaintiff NAR Apartments LLC ( NAR ) is the owner of the 25-unit apartment building located at 5 17 East 13thStreet in New York County (the Building ). NAR commenced this action on June 15,2010 against defendant Patricia Ippolito ( Defendant ), a tenant in the Building, seeking a judgment declaring as valid and enforceable a letter agreement dated March 3 , 2 0 10 signed by both parties (the Letter Agreement ), wherein Defendant represented and agreed that she would not keep a dog in her apartment. NAR now brings this motion for summary judgment pursuant to CPLR $3212. Defendant cross-moves for summary judgment pursuant to CPLR $3212, and to strike the verified complaint pursuant to CPLR $3 126. Defendant has lived in the Building and has resided in her apartment (Apartment 3B) pursuant to a lease since 1998 which contained a no-pet clause. It is undisputed that in January 2010, Defendant adopted a four year old 1 [* 3] Yorkie and brought it into her apartment without informing NAR or seeking its permission. NAR commenced an eviction proceeding immediately thereafter. By March 1,2010, Defendant advised NAR that the dog had been removed from the apartment, and offered to let a representative from NAR inspect the apartment to confirm same. After inspection of the apartment, NAR provided Defendant with a Letter Agreement dated March 3,20 10. The Letter Agreement provided that: You hereby represent and warrant to us and hereby agree as follows: (i) you will not hereafter permit the dog to be present in your apartment under any circumstances, and (ii) neither you, nor any person whom you permit to reside with you in your apartment, will maintain or permit to maintain, or allow any dog to visit or to reside in your apartment at any time for any purpose whatsoever. Defendant claims that she signed the Letter Agreement under duress. By letter dated June 8,2010, Defendant s attorney claimed that the Letter Agreement, and NAR s alleged coercion of Defendant into signing the letter constituted unlawful discrimination against a disabled person. The letter claimed that Defendant suffers from depression and is disabled as defined under relevant federal, state, and city anti-discrimination laws. Further, the letter claims that Defendant s dog is a medically necessary source of emotional support for Defendant. In October 20 10, Defendant moved for summary judgment, or alternatively, for an order staying the action during the pendency of the Defendant s State Division of Human Rights ( DHR ) proceeding concerning her request for a reasonable accommodation; and for her order quashing subpoenas served on Dr. Goff seeking his deposition and pertinent medical records. NAR cross-moved for an order compelling the deposition of Dr. Goff and alternatively, sought summary judgment on the issue of the enforceability of the Letter Agreement. By Order dated November 16,2010, the court denied the parties motions for summary judgment as an issue of fact remained as to whether Defendant was in fact disabled, and whether she required the presence of her dog in the apartment as a reasonable accommodation for her claimed disability. 2 [* 4] . Defendant thereafter moved to amend her answer to assert an additional cross-claim seeking compensatory and punitive damages, as well as costs and attorney s fees based upon NAR s failure to grant her a reasonable accommodation by allowing her to harbor her dog in violation of Section 804,42 U.S.C. 3604 of the Fair Housing Act, as well as other applicable federal, state and city disability laws. Defendant s second counter-claim sought damages for NAR s commencement and prosecution of this action in retaliation for Defendant s assertion of her right to a reasonable accommodation under the Fair Housing Act, and other state and local claims. By Order dated November 2 1,20 11, the Court granted Defendant leave to amend her answer to add her first counterclaim seeking damages and costs but granted Plaintiffs cross motion to dismiss Defendant s counterclaim for retaliation. NAR now moves again for summary judgment pursuant to CPLR $32 12, and alternatively, seeks additional relief, including to modi@ this Court s preliminary conference dated January 22,20 13 to allow for certain additional discovery, including a mental examination of Plaintiff, inspection of Plaintiffs apartment, and access to Defendant s facebook and AOL accounts. Defendant cross-moves for summary judgment pursuant to CPLR $3212, and to strike the verified complaint pursuant to CPLR $3 126 based on Plaintiffs failure to submit to depositions as ordered by the Court in its Compliance Conference Order dated April 30,2013. Defendant responds that the delay in the taking of depositions was caused by Plaintiffs failure to provide proper HIPPA authorizations. The parties have now entered into a Compliance Order dated September 10,2013 setting forth a deposition schedule. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law. That party must produce sufficient evidence in admissible form to eliminate any material issue of fact from the case. Where the proponent makes such a showing, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. The affirmation of counsel alone is not sufficient to satisfy this requirement. ( Zuckerman v. City o f New York, 49 N.Y.2d 557 [ 19801). In addition, bald, conclusory allegations, even 3 [* 5] u . c if believable, are not enough. (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255 [ 19701, Edison Stone Corp. v. 42nd Street Development Corp.,145 A.D.2d 249,25 1-252 [ 1st Dept. 19891). Successive motions for summary judgment are not permitted in the absence of showing newly discovered evidence or other sufficient cause. Marine Midland Bank v. Fisher, 85 A.D. 2d 905,906 [4* Dept. 19811. NAR contends its second motion for summary judgment is warranted based on the following reasons: (1) the passage of more than three-and-one-half years without a dog raises the issue whether defendant can . . .prove that she requires a dog to use and enjoy her apartment, (2) Defendant s cat serves as her emotional support; and (3) Defendant has failed to provide discovery. However, the Court finds these arguments to be unavailing. NAR has failed to demonstrate newly discovered evidence or other sufficient cause to warrant its successive motion for summary judgment. Wherefore, it is hereby, ORDERED that Plaintiffs motion is denied; and it is hrther ORDERED that Defendant s cross motion is denied; and it is further ORDERED that all parties are reminded that they must appear for their scheduled conference at 80 Centre Street, Room 327, on February 11, 2014 at 9:30 a.m. This constitutes the decision and order of the court. All other relief Check one: FINAL DISPOSITION X NON-FINAL DISPOSITION ] Check if appropriate: c DO NOT POST 0 REFERENCE 4 DEC 0 6 2013 COUNTY CLERK S OFFICE NEW YORK

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