P & S 95th St. Assoc., LLC v Nilde Realty
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P & S 95th St. Assoc., LLC v Nilde Realty 2015 NY Slip Op 31504(U) August 10, 2015 Supreme Court, New York County Docket Number: 154511/13 Judge: Peter H. Moulton 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 COUNTY OF NEW YORK: I.AS. PART 50 -----------------------------------------------------------------------)( P & S 95 111 Street Associates, LLC Plaintiff, Index No. 154511113 Seq 006 Nilde Realty, Gaetano Sacrselli, Lconildc Scarselli, Phillipos Restaurm11. Inc., d/b/a THE BARKJNG DOG, Kastriot Topalli and Arthur Llanaj Defendants. -----------------------------------------------------------------------)( PETER H. MOULTON: Defendants Phillipos Restaurant d/b/a "ff-IE BARI(ING DOG, Kastriot Topalli and Artht1r Llanaj ("defe11dants") 1nove under CPLR 50 l 5(a) (I) to vacate tl1is court's decision and order dated Marcl113,2014 (the "Decision"). ]'he Decisio11 was issued in connection with a11unopposed1notio11 for conten1pt. In the Decision, t11c court held that defenda11ts were in contempt for failing to comply with two unambiguous prior orders of Judge Scarpulla to "remove ti1e woode11 platforn1 at their restaurant." Alternatively, defendants inove to reargue ( CPLR 2221 [dJ) or re11e\V (CPLR 2221 {e ]) the finding ofconte1npt, and to stay or cancel the dan1ages hearing that was proceeding before Justice Schecter, bltt whicl1 l1as now been cornpleted. 1 Defendants argue that the i11otion is ti1nely as to re11e\val because there is no ti1ne lin1itation for renewal, and that it is ti1nely as to vacatur and reargu1nent because plaintiff did i1ot serve i1otice of entry of the Decisio11 or file proof of Sl1ch service. Defendants further contend that they received 1 This court li1nitcd the l1earing to dainages accn1i11g after Judge Scarpulla's November 6, 2013 decision and order. [* 2] inadequate representation. News articles ii1dicated that one of their attor11eys, Dai1iel W. Issacs, had been "freaked out" as a result of being cn1broilcd in a political sca11dal (but tl1at was in February 2013). Issacs was not charged \Vitl1 any crin1e, but l1c testified in July, 2014 in co11nectio11 with that scandal. Defendants' subsequent attor11ey, tl1ey contend, lacked expertise in litigatio11. Fu1ther1nore, plaintiff failed to comply with its O\Vn obligatio11s under a Ju11e 12, 2013 order sig11ed by Judge Scarp11lla providing that wl1en tl1e sidewalk shed ¥.1as b11ilt, it had to be raised to minimize the obstruction of the resta1Lra11t. Defendants point to the Building Code section 3307 .6.2 wl1ich provides that certain sidewalk sheds 111ust be constructed so as not to unreasonably obstn1ct the entrances and egresses of adjacent proJJcrtics. Defcndru1ts also assert tl1at the original plans for the sidewalk shed were illegal as tl1e shed would l1ave blocked a fire exit. Additionally, plaintiff could not have done tl1e work in the winter 1nonths anyway, as conceded by plaintiffs attor11ey i11 l1is af.fir1nation, submitted in connection with one of the prior motions, 2 Had ru1 attorney appeared on March 13, 2014, submitted oppositio11 papers, brought the relevant Building Code section to the court's atlentio11, and noted plaintifI's no11-co1npliru1ce witl1 its own obligations, the conte111pt order would not l1ave been granled. 3 Therefore, defendants argtte that the Decision should be vacated based on rneritorious defe11ses and tl1e excusable default of law office failure. 4 Fllliher, based on 2 Wl1ile this argu1nent is presumably 111ade to minimize the conte1npt, it is an argun1ent which is better suited for tl1e damages heari11g before J1tdge Schecter. 3 My cot1rt attorney recalls tl1at an individtral connected with tl1e restaurant appeared on March 13, 2014. However, he cotild not appear for the restaurant which was a corporatio11 required to appear by an atton1ey. ~The cotnt does not condone attorney Issacs' faillll·e to appear or submit papers in opposition to tl1e co11ten1pt 111otio11. E\'en if he no longer represe11ted defendants, l1e should 11ave filed ru1 Order to Sho\\' Cattse to \Vithdra\V fron1 representation. 2 [* 3] renewal or reargu1nent, tl1e court sl1ould alter its fit1di11g of co11ternpt. Plaintiff opposes the 1notio11, asse1ting that it served notice of entry of the Decision by emailing and 111ailing a letter to attor11ey Issacs and a11other attorney on Marcl1 17, 2014 which attached the Decisio11. Plaintiff asserts that i1otice of ent1y i1eed not take any particular form citing Barie 1• Lavine (46 AD2d 827 [3d Dept 1974] [letter attacl1ingjudgrnent was sufficient to constitute notice of entry]) and S Cremona v Dell (6 AD2d 719 [2d Dept 1958] [letter stating "[e]nclosed l1erewitl1 please find a copy" of court findings and the judgment roll was sufficient to constitute notice of ent1y ]). Since the nlotion to vacate was n1ade 1nore than one year after service of notice of entry, and reargttme111 was n1ade 1nore than 30 days after service of notice of entry, the nlotio11 should be denied as untin1ely. Further, plaintiff 1naintai11s that there are no grounds for vacatur tu1der CPLR 5015 because tl1ere is no "11e,vly discovered evide11ce" or other requisite grounds cited. Plaintiff also asserts t11at tl1e argument that defendants were relieved of their obligations, beca11se plaintiff did not1ninimize obstruction to the restaurant, is speculative; defendants prevented plaintiff fro1n erecting the shed in tl1e first i11stance, thus maki11g any attempt to mini1nize obstruction itnpossible. 111 reply, defendants reiterate tl1eir argu1nents. They qtiestion whether plaintiffs cou11sel nlailed the Marcl1 17, 2014 letter, noting that proof of service was not filed. They furtl1er question wl1ether Issacs ever co11sented to efiling or to service by email. They further assert that tl1e scaffold was eventually constructed without the need to remove the platform (wl1icl1 is suppo1ted by plaintiffs papers; apparently holes were drilled into tl1e platfo1m instead), and that the shed was only st1ccessfully constructed after defendants hired and paid for their own engineer. In a letter dated August 4, 2015 (NYSCEF Doc 133) unsolicited by the court, defendants stress they did not ig11ore 3 [* 4] court orders. In a i1ew argun1ent, they poi11t to tl1eir purported good faith efforts to co1nply by removing "half oftl1e platform" prior to Judge Scarpulla's November 13, 2013 order. Defendants also raise the new argurnent that a banlauptcy stay was in effect for a period of time after Judge Scarpulla's Ju11e 12, 2013 order directed the1n to remove its wooden platform before August 1, 2013 (the restaurant filed a ba11lauptcy proceeding on or about July 30, 2013, one day before Judge Scarpulla's deadline). Discussion The rnotion is de11ied. Absent circun1stances not present 11ere, the sanctity of court orders can not be con1pro1nised by tl1e belated arg1rn1ents/explanations asserted here. Even assuming tl1at Issacs did not conse11t to service by efiling or email, the March 17, 2014 Jetter constituted notice of entry. Altho1rgh no proof of service v,ras filed, plaintiff's colUlsel's state111ent that the letter \Vas mailed is not rebutted. Tl1erefore, the 1notio11 is time-barred. Further, tl1c facts 1nentioned in tl1is motion arc not "new facts" wl1ich could support vacatur. Nor do defendru1ts present a reaso11able justification for tl1eir failure to present ce1tain facts to the co11rt on March 13, 2014 sufficie11t to support renewal, where defendants 11ave waited until now to raise those facts. While the court often excuses defaults based on law office failure, defendru1ts have inexcusably delayed i11 raisi11g these issues. Moreover, even if the niotion was not timc~barred, defendants sho1ild not be relieved of contc1npt based on tl1eir very belated ctssertion that plaintiff failed to comply with its O\Vll obligations under Judge Scarpulla's June 12, 2013 decisio11 and order (co1n1Jare White v Wl1ile, 265 App Div 942 [2d Dept 1942] [where it appeared "without contradiction" tl1at plai11tiff failed to co111ply with the conditions imposed by the order, defendant should not have bee11 held in co11te111pt for failure to con1ply with other conditions imposed on it]). 4 [* 5] Additionally while Judge Scarpulla's June 12, 2013 decision a11d order obligated both plaintiff and defendants to take certai11 actions, the Noven1ber 6, 2013 decisio11 a11d order was solelJ1 directed agaii1st defendants. Defendants did not 111ove for relief from Judge Scarpulla's directive to "re1nove the woode11 platform at their restaurant" until over two years later. 5 Eve11 where tl1e prior order is erroneous (so lo11g as tl1e court has jurisdiction), the prior order must be obeyed in the absence of a stay, reversal or modificatio11 of tl1e order (see e.g., ,()eril v Beinord Tenants Assoc., 139 AD2d 401 [!st Dept !988]; Marguiles v Marguiles, 42 AD2d 517 [!st Dept 1973]). Although defendants contend that tl1e banktuptcy filing stayed Jtidge Scarpulla's August 1, 2013 deadline to re1nove the \.Vooden platforn1, the bankruptcy order does not support tl1atargumen1. Rather, the banlcruptcy order states that the stay "does not apply" to the Ju11e 12, 2013 order for the reasons stated on the record in the bank1uptcy proceeding. Eve11 assumi11g that defendants could be excused from performance based on their good faith belieft11a1 the stay negated any obligation to comply with tl1e August 1, 2013 deadline (see e.g, Davis-Ta; lor v D<tvis-Taylor, 4 AD3d 726 [3d Dept 2004] [failtrre to comply 1 based 011 mistaken belief is a defense to conte1npt]), the matter did 1101 end there. Judge Scarpulla issued another decisio11 on Nove111ber 6, 2013 gra11ting a motio11 for contempt "to the extent set fortl1 in the accompa11ying order" and directed that defendants "must remove the \vooden platfor1n at their restaurant by Nove111ber 13, 2013 ."6 That decision and order was ignored (whicl1 defendants now attempt to excuse because plaintiff did not do what it had to do u11der the Bttilding Code). The 5 A notice of appeal was filed in connectio11 witl1 Judge Scarpulla's June 12, 2013 decision and order. However, it appears that defe11da111s went no further than filing a notice of appeal. 6 111 defe11dants' August 4, 2015 letter, cotu1sel asseris that Jtidge Scarpulla did not find that his clients were in co11te1npt btit rather that she si1nply ordered compliance. Even if this were the case, it does not negate tl1e fact that defendants were obligated to comply with her order. 5 [* 6] wooden platfor111 was not re1noved until March 19, 2014 after the court issued t11e Decision holdiI1g defendants in co11te111pt a11d directing that a proposed order include the potential for imprisontnent. As defendants' counsel noted, this court expressed in a Septen1ber 19, 2014 decision and order that an owner's 11eed to gain access to adjacent bi1ildings to perfor111 improve1nents or repairs inust be balanced witl1 the interests of those adjacent ow11ers or lessees. However, the court's interest in balancing the rights of all parties does not 11egate the fact that, m1der the circu1nstances here, it was inctn11bent on defenda11ts to either obtain relief fro111 the court orders or co1nply with them. 7 It is l1ereby ORDERED that defenda11ts' inotio11 is de11ied. This constitutes the Decisio11 and Order of the Court. Dated: August IO, 2015 ~,! J.S.C. HON. PETER H. MOULTON J.S.C, 7 T11e court credits defendants' cu1Tent counsel, wl1ose papers are of excellent quality. 6
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