Antebi v 1835 JRA, LLC

[*1] Antebi v 1835 JRA, LLC 2013 NY Slip Op 51017(U) Decided on June 24, 2013 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 24, 2013
Supreme Court, Kings County

Elliot Antebi AND RACHEL SUTTON, Plaintiffs,

against

1835 JRA, LLC, RAYMOND J. ASHKENAZIE AND YOLANDA ASHKENAZIE, Defendants.



2318/13



Attorney for Plaintiff

Stuart A. Klein, Esq.

By: Peter E. Sayer, Esq.

90 Broad Street, Suite 602

New York, NY 10004

(212) 564-7560

Attorney for Defendant

Zetlin & DeChiara, LLP

Raymond T. Mellon

801 Second Avenue

New York, New York 10017

(212) 682-6800

Francois A. Rivera, J.

By notice of motion filed on March 22, 2013 under motion sequence number two, defendant 1835 JRA, LLC, Raymond J. Ashkenazi and Yolanda Ashkenazie, (hereinafter the Ashkenazie defendants) have moved pursuant to CPLR 3211(a)(1), (2) and (7); and CPLR 3211(c) for an order dismissing the plaintiffs' complaint.

By notice of cross-motion filed on April 10, 2013 under motion sequence number three, plaintiffs Elliot Antebi and Rachel Sutton have opposed the Ashkenazie defendants' motion and cross-moved pursuant to CPLR 3025(b) to amend the verified complaint.

BACKGROUND

On February 6, 2013, plaintiffs commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. The plaintiffs are the owners of real property located at 1831 Ocean Parkway in Brooklyn, New York. The defendants are owners of an adjacent real property located at 1835 Ocean Parkway in Brooklyn, New York. The complaint contains one hundred and ten allegations of fact in support of eleven causes of action. The [*2]gravamen of the action is that the defendants have undertaken construction on their property that is in violation of New York City regulations and ordinances. Plaintiffs allege that those alterations encroach on plaintiffs' land, constitute a nuisance, and have adversely effected plaintiffs' property value. Plaintiffs seek an injunction and monetary damages. Issue has not been joined.

THE COMPLAINT

The first through sixth causes of action allege that the defendants have performed construction on their property that violates New York Zoning Resolutions, New York City Ordinances, the New York City Administrative Code and the New York City Code. Plaintiffs allege that the defendants acted with intentional, illegal, wanton, willful and malicious disregard of the plaintiffs' rights. The seventh cause of action is for negligence in violating the zoning resolutions and ordinances. The eighth cause of action alleges that defendants' actions interfered with plaintiffs' use and enjoyment of their property and constitutes a nuisance. The ninth cause of action seeks an injunction and monetary damages pursuant to RPAPL § 871 based on the defendants' construction of a masonry structure that encroaches on the plaintiffs' property. The tenth cause of action alleges that the masonry structure that encroaches on the plaintiffs' property constitutes a trespass. The eleventh cause of action alleges that due to the defendants' property lacking a certificate of occupancy that the defendants should be enjoined from occupying the property.

MOTION PAPERS

Defendants' motion papers consists of a memorandum of law, an attorney affirmation and eight exhibits labeled A through H. Exhibit A contains the summons and verified complaint. Exhibit B contains three affidavits. The first affidavit is by Gerald Goldstein, (hereinafter Goldstein) a licensed architect, which includes Goldstein's "Research and Inspection report" dated March 3, 2013. The second affidavit is by Juan Larino (hereinafter Larino), described as the president and owner of Larino Masonary Inc., a masonry subcontracting company which performed construction work at defendant's property. The third affidavit is by Walter Maffei (hereinafter Maffei), a registered architect. Exhibit C is a duplicate of the aforementioned affidavit by Larino. Exhibit D is an affidavit by Julie Schwecky, described as a cousin of the defendant Yolanda Ashkenazie. Exhibit E is an affirmation of Raymond T. Mellon, the defendants' attorney. Exhibit F contains two photographs with text purportedly describing conditions of the plaintiffs' and the defendants' property. Exhibit G contains unlabeled photographs of windows. Exhibit H appears to be a property survey of the block described as Avenue R and Ocean Parkway.

Plaintiffs' cross-motion papers consists of a notice of motion an attorney affirmation, twenty-six exhibits labeled A through Z, and three exhibits labeled A1 through C1. Exhibit A contains the summons and verified complaint. Exhibit B is the proposed amended verified complaint. Exhibit C is described as a copy of a deed recorded in the office of the City Register of the City of New York prepared January 10, 2008 transferring the property from the Ashkenazie defendants to JRA, LLC. Exhibit D appears to be a copy of a bargain and sale deed dated May 24, 2012 between Abe Chehebar and the plaintiffs. Exhibit E is described as a New York City Department of Buildings (hereinafter DOB) permit connected to the Ashkenazie defendants' property. Exhibit F is described as a photocopy of the front facade of the Ashkenazie [*3]defendants' property. Exhibit G appears to be a DOB document entitled "overview for complaint." Exhibit H contains two unlabeled black and white photographs. Exhibit I consists of three unlabeled photographs. Exhibit J is described as a copy of an Environmental Control Board (hereinafter ECB) violation report connected to the Ashkenazie defendants' property. Exhibit K is described as a copy of an ECB violation report from DOB. Exhibit L is described as a decision of the DOB in response to a complaint. Exhibit M is described as a decision of the DOB in response to a violation. Exhibit N is described as a copy of a DOB document which lists stop-work orders. Exhibit O appears to be a decision of the DOB in response to a complaint. Exhibit P appears to be a DOB violation report. Exhibit Q is an affirmation by plaintiffs' counsel in support of an order to show cause filed for a temporary restraining order and preliminary injunction on or about February 6, 2013. Exhibit R and S appear to be DOB decisions in response to violations. Exhibit T is an affirmation of defendants' counsel in opposition to the order to show cause seeking a TRO. Exhibit U is a short form order of this Court dated March 5, 2013, which extends the temporary restraining order until the motion for preliminary injunction is decided. Exhibits V appears to be copies of surveys of the plot plans for properties located adjacent to Avenue R and Ocean Parkway. Exhibit W appears to be a print out from the DOB regarding a complaint. Exhibit X is a stipulation with attached exhibit relating to the request for a preliminary injunction and what appears to be architectural plans. Exhibit Y appears to be a map of 1831 Ocean Parkway, Brooklyn, New York. Exhibit Z appears to be a map of 1831 Ocean Parkway, Brooklyn, New York. Exhibit A1 is an unsigned and undated contract which appears to reference plaintiffs' property. Exhibit B1 appears to be a status sheet from the ECB reflecting a violation as dismissed. Exhibit C1 is the affidavit and inspection report of Maffei, dated February 6, 2013.

Defendants have also submit an attorney's affirmation in reply. The reply contains two exhibits labeled A and B as well as three labeled affidavits. Exhibit A and exhibit B appear to be DOB reports marking complaints as resolved. The three labeled affidavits are of the defendant Yolanda Ashkenazie, and two architects, Mr. Goldstein and Mr. Cambiero.

LAW AND APPLICATION

Plaintiffs' Motion to Amend the Complaint

Plaintiffs' proposed amendments consist of striking the ninth and tenth cause of action and fixing an error in a New York City Code citation to read 28-105.1 instead of 105.1. Plaintiffs have moved pursuant to CPLR 3025(b) which provides that "a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Furthermore, any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading."

Generally, leave to amend a pleading should be freely given when there is no significant prejudice or surprise to the opposing party and where the evidence submitted in support of the motion indicates that the proposed amendment may have merit (Hothan v Mercy Medical Center, 105 AD3d 905 [2nd Dept 2013] quoting Edenwald Contr. Co. v City of New York, 60 NY2d 957, [*4]959 [1983]).

However, as our learned colleague noted, "service of an Amended Complaint is not the appropriate vehicle to withdraw or discontinue a cause of action. Rather, it is CPLR § 3217 that controls. Whether a party should be permitted to discontinue a cause of action is committed to the discretion of the Court, and while generally a party may not be compelled to litigate a claim, there may be special circumstances warranting a denial of an application for a discontinuance (Rotwein v Sunharbor Manor Residential Health Care Facility, 181 Misc 2d 847 [N.Y.Sup.Nassau,1999] citing St. Pierre v. Ostreich, 123 AD2d 857 [2nd Dept 1986]). As the Court is permitted to disregard irregularities, defects, mistakes, and omissions, when a substantial right of a party is not prejudiced, pursuant to CPLR 2001, the Court chooses to disregard the plaintiffs' error in moving under CPLR 3025(b). Based on defendants' lack of opposition and the apparent lack of prejudice to any party, plaintiffs' cross-motion to amend the complaint is granted.

Converting the Motion to Dismiss Pursuant to CPLR 3211(c)

The determination whether to convert a CPLR 3211(a) motion to one for summary judgment pursuant to CPLR 3211(c) is not without consequence. A dismissal of a complaint pursuant to a summary judgment motion bars the later commencement of an action pertaining to the same transactions or occurrences. However, a dismissal pursuant to CPLR 3211(a)(7) based on a pleading deficiency has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint (see 175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 589 [1980]).

CPLR 3211(c) provides that a motion to dismiss the complaint may be converted to one for summary judgment after giving adequate notice to the parties (see Mihlovan v. Grozavu, 72 NY2d 506 [1988]). But "the unilateral actions of a party in seeking summary judgment on a CPLR(a)(7) motion cannot constitute adequate notice' to the other party in compliance with the requirement under CPLR 3211(c)" (Mihlovan, 72 NY2d at 508).The parties' motion papers do not exclusively involve "a purely legal question rather than any issues of fact" (id.). Furthermore, the papers do not demonstrate that the parties were "laying bare [their] proof and deliberately charting a summary judgment course" (Mihlovan, 72 NY2d at 508 citing Four Seasons Hotel v Vinnik, 127 AD2d 310, 320 [1st Dept 1987]). It is therefore not appropriate to convert defendants' motion to one for summary judgment.

CPLR 3211(a)(1)

The defendants seek dismissal of the complaint pursuant to CPLR 3211(a)(1). The statute provides that a defendant may move to dismiss a cause of action on the ground that "a defense is founded upon documentary evidence" (CPLR 3211(a)(1)). A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes [a] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goseh v Mutual Life Ins. Co.of NY, 98 NY2d 314, 326 [2002]).

To be considered "documentary," for purposes of a motion to dismiss based on documentary evidence, evidence must be unambiguous and of undisputed authenticity. From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case. If the [*5]document does not reflect an out-of-court transaction and is not essentially undeniable it is not documentary evidence within the intendment of CPLR 3211(a)(1) (see Fontanetta v Doe, 73AD3d 78 [2nd Dept 2010]).

The evidence submitted by the defendants in support of the motion under CPLR 3211(a)(1) include affidavits, photographs, and a survey of the parties' properties. An affidavit is not considered "documentary" evidence (see Norment v Interfaith Center of New York, 98 AD3d 955 [2nd Dept 2012]). Furthermore, while the photographs and the survey may be authentic, they do not utterly refute the plaintiffs' factual allegations, or conclusively establishing a defense as a matter of law.

CPLR 3211(a)(2)

The defendants contend that the plaintiffs are limited to administrative proceedings to litigate their claims because most of their claims arise out of violations of city ordinances, zoning regulations or administrative codes. Essentially, the defendants claim that the Court lacks jurisdiction over the matter as the plaintiffs have not exhausted their administrative remedies.

A party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has "no jurisdiction of the subject matter of the cause of action." In New York's state court system, the Supreme Court "is a court of general jurisdiction, and it is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed" (Wells Fargo Bank Minnesota, Nat. Ass'n v Mastropaolo, 42 AD3d 239 [2nd Dept 2007] see also McKinney's Const. Art. 6, § 7).

A court lacks subject matter jurisdiction when it lacks the competence to adjudicate a particular kind of controversy in the first place. "The question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it" (Wells Fargo Bank Minnesota, Nat. Ass'n v Mastropaolo, 42 AD3d 239 [2nd Dept 2007] citing Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718]).

Although not specifically stated, the defendants' argument invokes the concept of primary jurisdiction and the balancing between litigation and administrative proceedings. "The doctrine of primary jurisdiction is intended to co-ordinate the relationship between courts and administrative agencies to the end that divergence of opinion between them not render ineffective the statutes with which both are concerned, and to the extent that the matter before the court is within the agency's specialized field, to make available to the court in reaching its judgment the agency's views concerning not only the factual and technical issues involved but also the scope and meaning of the statute administered by the agency" (Davis v Waterside Hous. Co., 274 AD2d 318 [1st Dept 2000], quoting Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11 [1983]). " [W]hile concurrent jurisdiction does exist, where there is an administrative agency which has the necessary expertise to dispose of an issue, in the exercise of discretion, resort to a judicial tribunal should be withheld pending resolution of the administrative proceeding' " (Davis v Waterside Hous. Co., supra at 318—319, quoting Eli Haddad Corp. v Redmond Studio, 102 AD2d 730 [1st Dept 1984]). However, it is settled beyond doubt that an action for injunctive relief is the appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of express zoning regulations (Lesron Junior, Inc. v. Feinberg, 13 AD2d 90 [1st Dept 1961]; Haddad v Salzman, 188 AD2d 515 [2nd Dept 1992]). [*6]

Therefore, it is well recognized that there are causes of action that are based on violations better heard before an administrative agency, but for the severity of the damages. In this action the complaint alleges several violations of New York City Zoning Ordinances and Resolutions that may constitute a nuisance or possibly make the plaintiffs' property unsafe. A party should not be estopped from seeking judicial redress simply because an ordinance, regulation or resolution is cited within the complaint. As the litigation is pre-answer, this Court does not agree that plaintiffs are limited to the administrative agencies. Additionally, the complaint alleges nuisance which is a common law cause of action, certainly within the purview of this Court's authority. In sum, the defendants have not established though their submissions that the Court is not competent to entertain the causes of action.

CPLR 3211(a)(7)

The final procedural section that defendants move under is CPLR 3211(a)(7), asserting that the plaintiffs' fail to state a cause of action. In analyzing a CPLR 3211(a)(7) motion the court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Stucklen v Kabro Assocs., 18 AD3d 461, 462 [2nd Dept 2005]). However, "bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2nd Dept 2008]). Additionally, "in assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Simmons v Edelstein, 32 AD3d 464, 465 [2nd Dept 2006]). In sum, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).

On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party (Sokol v Leader, 74 AD3d 1180 [2nd Dept 2010]). Unless the motion is converted into one for summary judgment pursuant to CPLR 3211[c] "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint," and such affidavits "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Sokol v Leader, supra citing Rovello v Orofino Realty Co., 40 NY2d 633, 636-638 [1976]). Thus, a plaintiff "will not be penalized because he has not made an evidentiary showing in support of his complaint" (Id.; citing Rovello v Orofino Realty Co., 40 NY2d at 635).

A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (Id.). If the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Id). Yet, affidavits submitted by a defendant "will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action' "(Id). Indeed, a motion to dismiss pursuant to CPLR 3211 (a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Id). Applying these principles to the instant application, the court denies the motion.

The complaint essentially states two causes of action, one for injunctive relief and the [*7]second for nuisance. Both causes of action are adequately plead. Generally, for a party to be entitled to injunctive relief, a movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent the granting of the injunction, and (3) a balancing of the equities in the movant's favor. However, to obtain preliminary injunctive relief based on a violation of a zoning ordinance, a movant is not required to show irreparable harm (Thilberg v Mohr, 74 AD3d 1055 [2nd Dept 2010]). The decision to "grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court" (First Franklin Sq. Assoc., LLC v Franklin Sq. Prop. Account, 15 AD3d 529 [2nd Dept 2005][internal citations omitted]).

The elements of a private nuisance cause of action are (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act (Massaro v Jaina Network Systems, Inc. 106 AD3d 701 [2nd Dept 2013]). Nuisance elements are generally questions for a jury unless the evidence is undisputed (Weinberg v Lombardi, 629 NYS2d 280 [2nd Dept 1995]).

The complaint adequately states a cause of action for injunctive relief and nuisance. Specifically the complaint alleges that the plaintiffs' first floor is totally blocked of air and light by the defendants' construction and that they are unable to make repairs to their own property due to defendants' construction that has left insufficient space between the properties.

The defendants' affidavits in support of the motion to dismiss do not adequately address plaintiffs' claims. Nor do they conclusively establish that a fact is not a fact at all rather they simply raise issues that are not ripe for determination. Specifically, the affidavits of Mr. Goldstein, a licensed architect and Mr. Larino, the mason subcontractor, both attempt to refute the findings of plaintiffs' expert. The difference of opinion between experts clearly evidences that the complaint cannot be dismissed at this early stage in the litigation. Further, the affidavit of Julie Schwecky simply asserts that she witnessed construction being performed at the plaintiffs' property in the past.

Accordingly, defendants' request to convert the dismissal motion to a summary judgment motion pursuant to CPLR 3211(c) is denied. Also, defendants' motion to dismiss the complaint pursuant to CPLR 3211(a) (1), (2) and (7) is denied.

Plaintiffs cross-motion to amend the complaint pursuant to CPLR 3025(b) is granted. Plaintiffs are directed to serve the amended complaint on the defendants within 30 days.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:_______

J.S.C.