3235 Cambridge Owners, Inc. v Woo
Annotate this CaseDecided on October 15, 2013
Civil Court of the City of New York, Bronx County
3235 Cambridge Owners, Inc., Petitioner-Landlord,
against
Alice Woo, Respondent-Tenant, -and- "JOHN DOE" and "JANE DOE," Respondents-Undertenants.
10886/11
Andrew Lehrer, J.
Background
Petitioner 3235 Cambridge Owners, Inc. commenced this holdover proceeding against respondent-tenant Alice Woo and respondents-undertenants "John Doe" and "Jane Doe" in February 2011. The petition, as amplified by the predicate notice to cure dated December 2, 2010 and notice of termination dated January 28, 2011, alleges, among other things, that the subject building is owned by petitioner, a cooperative corporation; that Ms. Woo is a shareholder, tenant and proprietary lessee of the subject apartment (the "Apartment"); and that she has violated substantial obligations of her tenancy and proprietary lease by (1) failing to maintain the Apartment and repair conditions that are violations of record, (2) failing to permit petitioner access to the Apartment to perform repairs at her expense; and (3) preventing petitioner from removing violations of record pertaining to the Apartment.
In he answer, Ms. Woo denies the essential allegations of the petition and raises several affirmative defenses and counterclaims, including that she cured all issues raised in the notice to cure that were her responsibility to address; that the violations issued for her Apartment resulted from petitioner's negligent maintenance of the roof; and that, as a result, petitioner is responsible for curing those violations.
The trial of this case began on June 18, 2013. Petitioner's first witness was its property manager, who completed his testimony on June 20th, the next court date, at which point petitioner rested. Ms. Woo then moved to dismiss the petition, arguing that petitioner had presented no proof that she had denied it access to make repairs. The Court reserved decision on Ms. Woo's motion, stating that it would listen to the recorded testimony before the next court date. In the meantime, Ms. Woo began her case, calling, and completing the examination of, two witnesses. [*2]
On August 7th, the next court date, the Court indicated that, after reviewing the recordings of the property manager's testimony, it had not found any testimony regarding Ms. Woo's failure to provide access for repairs. At petitioner's request, the Court gave it until September 13th to provide proof that there had been such testimony. Ms. Woo then called two more witnesses, completing the examination of the first and beginning the examination of the other. The case was then adjourned to September 17th.
Petitioner failed to submit proof by the September 13th deadline that there had been testimony regarding Ms. Woo's alleged failure to provide access. Instead, by notice of motion dated September 16, 2013, petitioner moved for an order allowing it to reopen its case in chief so that it could present such evidence now, stating that evidence regarding Ms. Woo's failure to provide access "may have been inadvertently omitted"and that such evidence is "necessary to that part of [its] case that alleges Respondent repeatedly breached her Proprietary Lease Agreement . .. as alleged in the Notice to Cure." In its motion papers, petitioner's attorney notes that upon expiration of the deadline set forth in the notice to cure, Ms. Woo agreed to grant petitioner access to cure the violations, but conditioned access on petitioner agreeing to perform the repairs at its expense. In support of that claim, petitioner annexes a copy of a letter from Ms. Woo's attorney, dated January 11, 2011, one day before the deadline, and copies of several letters from petitioner's attorney to Ms. Woo's attorney that were written after the commencement of this case.
Ms. Woo opposes petitioner's motion, arguing that it is untimely, fails to meet the required legal standard, would delay the trial by requiring her to conduct additional cross-examination of petitioner's property manager, and to re-examine several of its own witnesses (most of whom are on petitioner's board of directors), and would prejudice her because she is retired and living on a fixed income, and would have to pay more legal fees.
Discussion
"A trial court, in the exercise of discretion and for sufficient reasons, may allow a party to reopen and supply defects in evidence that have inadvertently occurred." (Kay Found. v. S & F Towing Serv. of Staten Island, Inc., 31 AD3d 499, 501 [2d Dept 2006]). Although "[a] trial court's discretion to reopen a case after a party has rested should be sparingly exercised," (King v. Burkowski, 155 AD2d 285 [1st Dept 1989]), permission to do so has been granted in several cases. (See e.g. Kay Found. v. S & F Towing Serv. of Staten Island, Inc., supra, 31 AD3d 499; Lindenman v. Kreitzer, 7 AD3d 30 [1st Dept 2004]; Harding v. Noble Taxi Corp., 182 AD2d 365 [1st Dept 1992]; Lagana v. French, 145 AD2d 541 [2d Dept 1988]; Kennedy v. Peninsula Hosp. Ctr., 135 AD2d 788 [2d Dept 1987]). Factors used to determine whether to allow a party to reopen its case include whether the failure to offer proof was inadvertent (see Matter of Radisson Community Assn., Inc. v. Long, 28 AD3d 88, 91 [4th Dept 2006]; Kennedy v. Peninsula Hosp. Ctr., supra, 135 AD2d at 791); whether the party seeking to reopen provided a sufficient explanation for its failure to present the omitted evidence (see Matter of John Jay Coll. of Criminal Justice of the City Univ. of NY, 74 AD3d 460, 462 [1st Dept 2010]; Matter of Radisson Community Assn., Inc. v. Long, supra, 28 AD3d at 92; whether that party moved to do so immediately after the other party moved to dismiss the case (see Matter of Radisson Community Assn., Inc. v. Long, supra, 28 AD3d at 91-92); whether the opposing party has already commenced its case (see Shapiro v. Shapiro, 151 AD2d 559, 560-561 [2d Dept 1989]; Kennedy v. Peninsula Hosp. Ctr., supra, 135 AD2d at 791; 22 St. Mark's Place, L.P. v. Mihara, 2001 NY Slip Op 40245[U][App Term, 1st Dept 2001]); whether the party seeking to reopen disclosed the [*3]nature of the omitted evidence (see Fischer v. RWSP Realty, LLC, 63 AD3d 878 [2d Dept 2009]; Kay Found. v. S & F Towing Serv. of Staten Island, Inc., supra, 31 AD3d at 501; Shapiro v. Shapiro, supra, 151 AD2d at 561; Lagana v. French, supra, 145 AD2d at 542; Kennedy v. Peninsula Hosp. Ctr., supra, 135 AD2d at 791); whether the omitted evidence is newly discovered (see Fischer v. RWSP Realty, LLC, supra, 63 AD3d 878; Shapiro v. Shapiro, supra, 151 AD2d at 561); whether significant delay in the trial will result if the motion to reopen is granted (see Kay Found. v. S & F Towing Serv. of Staten Island, Inc., supra, 31 AD3d at 501; 22 St. Mark's Place, L.P. v. Mihara, supra, 2001 NY Slip Op 40245[U]); and whether granting the motion will prejudice the other party (see Kay Found. v. S & F Towing Serv. of Staten Island, Inc., supra, 31 AD3d at 501).
In response to Ms. Woo's motion to dismiss, petitioner initially argued that, contrary to her claim, it had presented testimony regarding her failure to provide access. Unable to specify what that testimony was, it was given nearly three months to provide support for its position. Three days after its deadline for doing so, and after the examination of three of Ms. Woo's witnesses had been completed, petitioner instead moved to reopen its case. Petitioner's sole explanation for failing to present evidence during its case in chief regarding Ms. Woo's failure to provide access is that such evidence "may have been inadvertently omitted." It offers no explanation why it took it three months to reach that conclusion. Moreover, the only evidence it offers of Ms. Woo's pre-petition failure to provide access is a letter from her attorney to its attorney, sent by telecopier two days before the deadline set forth in the notice to cure. In that letter, Ms. Woo's attorney not only denies that she had failed to provide access, but states that "we will arrange access" after petitioner proposes access dates. Although the letter also states that any work done will be at petitioner's expense, it does not condition access on petitioner's agreeing to Ms. Woo's position.
Although the Court finds that petitioner's failure to present evidence during its case in chief regarding Ms. Woo's failure to provide access was inadvertent, that the trial would not be significantly delayed if its motion to reopen is granted, and that any prejudice to Ms. Woo could be addressed by imposing appropriate costs and attorneys fees on petitioner, it also finds that its excessive and unexplained delay in moving for relief, and its failure to disclose the existence of evidence sufficient to meet its burden of proving that Ms. Woo failed to provide access outweigh those factors. Accordingly, petitioner's motion to reopen is denied and Ms. Woo's motion to dismiss is granted to the extent of dismissing those causes of action alleging that she failed to permit petitioner access to the Apartment to perform repairs and that she prevented petitioner from removing violations of record pertaining to the Apartment.
This case is restored to the calendar on November 1, 2013 at 9:30 a.m. for continued trial.
This constitutes the decision and order of the Court.
Dated:October 15, 2013
Bronx, New York
________________________________________
Hon. Andrew Lehrer [*4]
Judge, Housing Court
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