Woodhaven Terrace Inc. v Woodhaven Assets Co.

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Woodhaven Terrace Inc. v Woodhaven Assets Co. 2017 NY Slip Op 32116(U) August 18, 2017 Supreme Court, Queens County Docket Number: 9254/13 Judge: Allan B. Weiss 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] Page 1 ol8 9254'2013 ORDER SIGNED SEQUENCE i6 Shon Form Order NEW YORK SUPREME COURT - QUEENS COU TY IA PART 2 Present: I IONORABLE ALLAN B. WEISS WOO DI-IA VEN TERRACE INC. Index Number: 9254/13 Plaintiff. Moti on Date: 3/21117 -againstMotion Seq. No. --=_ __ 6 WOOD! lJ\ VEN ASSETS CO., MA DEEP SINGI I and SANGITA SING II PATEL, LAWRENCE J. SILBERMAN, P.C. LAWRENCE J. SILBERMAN, ES r - - !lL!:D MEHRA LAW GROUP. P.C. and RAJA KARAN I MEI IRA. ESQ., Oc fendant s. ~~~~~~~~~~~~~~~~~~~ AUG 2 3 2017 I '~ ' i - -·__:~,~~~~·~~::~ :.-~~. ·--·------J I ! ; 1. •· The following papers numbered I to 38 were read on this moti on by defendants. Woodh aven Assets Co. (Assets). Mandeep Singh and Sangi ta Singh Patel. for, among oth er things, su mm ary judgment dismi ssing the Eighth through Fifteenth causes of acti on in plaintiffs complaint. pursuant to CPLR 32 12: the cross motion by defendants, Lawrence J. Silberman. P.C. and Lav.'rence J. Silberman. Esq. (the Silberman defendants) for, among other things. summary judgment di smi ssi ng the action as aga inst them. pursuan t to CPLR 32 12: and the cross motion of defendants. Mchra I.av.· Group, P.C. and Raj a Karan Mehra, Esq. (the Mehra defendants) for summary judgment di smissin g th e cross claims of codcfendants, pursuant to CPLR 3212 and General Obligations Law § 15-208 (b ). Papers Numbered Notice of Motion - Affirm at ion - Affidavit - Exhibits ....... .. .. ........ ..... 1-5 Answering Affirmati on - Exhibits ......... .. .. .. ............. ................. .. ...... .. 6-9 Reply Affirmati on - Affidavit - Exhibits ...................... .... .................. . I 0- 13 Notice of Cross Mot ion (S ilberman)- Affidavi t - Exhibits .... .. ........ .. . 14-18 Ansvvering Artirmation ...... .... ............................................... ......... .... .. 19-20 Reply Affidavit - Exhibits ........................ .......................................... .. 2 1-23 Notice of Cross Motion (Mchra) - Affirmation - Ex hi bits ................... 24-28 Answerin g Affirmation - Affidavits - Ex hibits........... ...... .. ................. 19-35 Reply Affirmation ............. ........................ .... .... ......... ... ........................ 36-38 Pnnted 10/31201 [* 2] Poge2ol8 9254/2013 ORDER SIG~ED SEQUENCE jl6 Upon the foregoing papers it is ordered that defendants· motion and cross motions are determined as follows: Defendant, Assets. owns property at 96-01 Jamaica Avenue, Woodhaven. New York . ln January 2008. it leased a portion of such property to an entity for the purpose of operating a catering hall. which lease was assigned to plaintiff Woodhaven Terrace, lnc. (Terrace) in August 2008. 1n Apri I 20 I 1. J\ssets commenced a non-payment proceeding against plainti IT. which was resolved by stipulation. setting up a payment schedule. In August 2012. Terrace defaulted in payment pursuant to that stipulation, resulting in a notice of eviction. Plaintiff made application to stop the eviction, which was denied. On appeal. the stay was granted. conditioned upon plaintiff s deposit of a sum certain with the Civil Court, which deposit was made. In December 2012, the Appellate Term granted plaintiff s motion for a stay. conditioned upon Terrace's payment to Assets of all arrears in rent and/or use and occupancy, less the deposited amount. and continued payment for use and occupancy as it became due. Pia inti ff did not have the monies to comply with the Order of the Appellate Term. so entered into negotiations with Assets, which resulted in a second stipulation (Stipulation II ). dated January 2013, by which Terrace was to make payments totaling $40,500.00, ass ign to J\ssets the right to the Civil Court deposit of$30. 625.00, forfeit its security deposit pursuant to the Lease. and vacate and remove all its scheduled property from the premises on or before Pebruary 28, 2013. Terrace timely made the two payments and released the Civil Court deposit to Assets. Assets admits that plainti IT vacated the premises on or before March L 2013. but contends that the property was left ·'a shambles:· violating the terms of Stipulation II . and of the Lease. with regard to vacatur of the premises. In May 20 13 , Terrace commenced this action against Assets. the owner and landl ord: the Silberman defendants. alleged to have been plaintiffs counsel during the eviction proceedings; the Mehra defendants, also alleged to have been plaintiffs counsel during th1: eviction proceedings; and Singh and Patel, alleged to have ·'communicated with (Assets) in an effort to take over the property and continue a catering business ... with the intent to interfere with Plaintiffs Lease: · Plain tiff included causes of acti on for wrongful eviction. conversion, breach of contract. breach of implied covenant of good faith and fair dealing, unjust enrichment and breach of the General Obligations Law§ 7-103 (2-a). Terrace alleges, through its principal. Binder Yasudev (Binder). that Binder's signature on Stipulation II was forged; that it (he) was not aware of the terms of Stipulation II; that such terms were not agreeable to it (him); and that attorneys Silberman and Mehra did not properly represent Terrace in these proceedings. -2- Pnnted 10/3/201 i [* 3] Pogo 3ol8 9254/2013 ORDER SIGNED SEQUENCE #6 "fT]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayo/le v Gervasio. 81 NY2d I062. I063, citing Alvarez v Prospect Hospital, 68 NY2d 320. 324119861; see Schmill v Medford Kidney Center, 121/\03d1088f2014j ;ZapalavBuitriago.107 AD3d977!2013]). On defendants' motion for summary judgment. the evidence should be liberally construed in a light most favorable to the non-moving plaintiff (see Boulos v lerner-lfarrington, 124 AD3d 709 l2015J; Farrell v Herzog, 123 AD3d 655 f2014]). The Court's function on a motion for summary judgment is ··to determine whether material factual issues exist not to resolve such issues·· (Lopez v Beltre. 59 AD3d 683, 685 l2009]; Santiago v Joyce , 127 J\D3d 954 [20151). As summary judgment is to be considered the procedural equivalent of a trial, ··it must clearly appear that no material and triahle issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is ' arguable' [citations omitted] (Sillman V. Twentieth Century-Fox Film Corp .. 3 NY2d 395, 404r1957 J: see also, Rotuba Extruders v.Ceppos, 46 NY2d 223 [ 1978]; Andre v. Pomeroy. 35 NY2d 361 11974 ]; Stukas v. Streif er. 83 AD3d 1812011 ); Dykeman v. Hehl, 52 AD3d 767 (2008 J. Summary judgment ·'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.. (Collado v Jiacono. 126 AD3d 927 [2014]). citing Scoff v long Is. Power Auth .. 294 J\D2d 348, 348 f20021). Defendant. Assets, has moved to dismiss the Eighth Cause of Action for wrongful ·~viction , alleging that plaintiffs violation of the terms of' Stipulation 11, by defiling the property upon its moving out, permitted Assets to enter the premises on March I. 2013, and. therefore, no wrongful eviction took place. In opposition. Terrace claims that Stipulation II was not binding on it, contending that Binder's signature thereon was a forgery, and that plaintiff was not given a notice to vacate prior to Terrace being locked out of the property by the owner/ landlord. Most of plaintiff s opposition herein is based upon the allegation by Binder that hi s signature on Stipulation II is a forgery, and such instrument is, therefore. not binding upon the parties. I lowever, as in the case at bar. bald avenncnts of forgery. merely stating conclusions oflaw or of fact, and unsupported by factual assertions, arc insufficient to raise an issue of fact necessary to defeat summary judgment (see Banco Popular North America v Victory Taxi Management, Inc., I NY3d 381 [2004]; HSBC Bank USA Nat. Ass 'n. v Armijos, 151 /\D3d 943 [2017)). Further. Binder has failed to demonstrate '·that (hi s) prclitigation conduct was consistent with a denial of genuineness" of his signature to Stipulation II (Banco Popular North America v Victory Taxi Management, Inc., 1 NY3d at 384). based upon the facts that multiple checks. in the amounts as stated in said Stipulation. -3- Printed 10131201 [* 4] P~e• ofe 11254 "2013 ORDER SIGNED SEQUENCE 116 were timely paid by Terrace to Assets. Plaintiffs additional contention that Stipulation II was invalid for lack of consideration is without merit. as a guarantee from Binder was. in fact , extant at the time of the drawing of said Stipulation II and , pursuant to its terms, Binder was released from personal li ability; that rental arrears were 'vvaived; that the amounts of payments were negotiated; and that the time:: lo vacate the premises was extended. Consequently, Binder ha s ·' failed to prove to a moral certainty" that his signature was forged (Kan terakis v Mino 's Realty I, LLC. 151 AD3d 950. 950 [2017 J). and failed to raise an issue of fact as to the va lidity of Stipulation II herein. Having demonstrated the va lidity of Stipulation II , which called for Terrace to vacate the premises by f-ebruary 28, 2013 , time bei ng of the essence, the branch of Assets· motion seeki ng to dismiss the Eighth Cause of Action for wrongful eviction is granted, and such cause of action is dismissed. Plaintifrs Thirteenth Cause or Action states a violation of Genera l Obl igations Law § 7- I03 (2-a). resulting from Assets· alleged fa ilure to maintain plai ntifrs security deposit in a segregated. interest-bearing account, and in its using said security deposit for its own purposes during the course of the tenancy. Such statute is inapplicable here, as. by its terms. it applies solely to "rental of property containing six or more family dwell ing units''. Further. 1he Lease in effect herein. at i1 of the Rider, speci fied that any security deposit "need not 23 be maintained in an interest bearing account." As such, the branch of Assets' motion seeking dismi ssal of plaintiff s Thirteenth Cause of Action is granted, and such cause of action is dismi ssed. Plainti ff admits to basing its Ninth Cause of Action. for conversion, on Assets' commingling of the security depos it. An action to recover damages for conversion cannot be predicated on a mere breach of contract (see Brown v Kristal Auto Mall Corp., I49 AD3d 1025 [20 I 7]). unless it is demonstrated that a defendant "engaged in tortious conduct separate and apart from fany allegedJ failure to fulfill its contractual ob ligations.. (New York Univ. v Cont '/ Ins. Co .. 87 NY2d 308, 316 [ 19951. As there was no action for commingling presented herein, there was no act of conversion to pursue as a tort claim (see Mall01:r Associates v Barving Realty Co .. 300 NY 297 11949 J), and the branch of the moti on seeking to dismi ss the Ninth Cause of Action is granted. and such cause or ac ti on is dismissed. Plaintiffs Tenth Cause of Action, for breach of contract, states onl y that "Defendant breached the Lease Agreement with Plaintiff ... Plaintiffs oppos ition to this branch of Assets' moti on refers only to a purported question or fact as to the valid ity of Stipulation II as support for the survival of this cause of action. Plaintiff, having fai led to rebut the val idity ol'Stipul ati on II, renders such opposition moot. and mandates the granting of th is branch of defendant ' s motion, and dismissal of this cause of action. -4- Punted 10/31201 [* 5] ~25''2013 ORDER Page 5 of e SIGNED SEQUENCE #6 ··r Plaintifrs Eleventh Cause of Action, stating only that d]efendant breached the implied covenant of good faith and fair dealing with every contract by his conduct,'' asserts nothing more than a duplication of the cause of action for breach of contract. as it fails to allege that defendant "engaged in conduct ... to realize gains from the plaintiff, while depriving the plaintiff of all benefits of the contract", as required for such a cause of action (Travelsavers Enterprises, Inc. v Analog Analytics, Inc .. 149 AD3d I003. 1006 l201 7]; see Elmhurst Dai1y , Inc. v Bartlet! Dairy , Inc .. 97 /\D3d 781 f2012J). /\gain, plaintiff s opposition to dismissal rests entirely on the premise that there exists a questi on of fact as to the validity of Stipulation II, which premise has been determined to be without merit. Consequently, this branch of defendant' s motion is granted. and the Eleventh Cause of Action is dismissed. Plaintiffs Twelfth Cause of /\cti on. alleging unjust enrichment, contemplates a situation in which the defendant has obtained a benefit which in "equity and good conscience" should be paid to the plaintiff (Corsello v Verizon NY, Inc.. 18 AD3d 777. 790 120 I 2J quoting Paramount Film Distrib. Corp. v Stale of New York. 30 NY2d 415. 412 11972]). In other words, such claim exists where there is ·'an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties" (Georgia Malone & Co., Inc. v Rieder. 19 NY3d 511, 516f20121 quoting IDT Corp. v Morgan Stanley Dean Willer & Co., 12 NY3d 142 [2009]. In the case at bar. Stipulati on II is j ust such an agreement, barring this claim. Further, "[a]n unjust enrichment claim is not ava ilable where it simpl y duplicates. or replaces, a conventional contract or tort claim" (Corsello v Verizon ,V }~ Inc .. 18 /\03d at 790). Herc. movant has "established Iits I prima fac ie entitlement to j udgment as a matter of law dismissing the cause of action alleging unjust enrichment ... ~i i nee that cause of acti on was precluded by the existence of a contract between !the parties I coveri ng the same subj ect matter·· (Ochoa v Montgomery. 13 2 AD3d 827, 828 l 20 151). In opposition. plaintiff has failed to rai se an issue of fact to refute such entitlement, and the branch of the motion seeking to dismiss the Twelfth Cause of Action is granted. The instant motion also seeks summary judgment dismissing the fourteenth and Fifteenth Causes of Acti on against defendant, Singh and Patel. The Fourteenth Cause of /\ct ion is fortortious interference with contractual relations, here, plaintiffs lease agreement with Assets. Whi le plaintiff has adequately pleaded such a cause of action aga inst Singh and Patel. movants have failed to eliminate all material issues of fact with regard to the necessary elements of their lack of knowledge of the lease and their lack of intent to procure the breach (see lama Holding Co. v Smith Barney Inc., 88 NY2d 413 [ 1996] ; Gutierrez v McGrath Management Services, Inc., - /\D3d - . 2017 NY Slip Op. 05425 (2d Dept. 20171; Tr i-Star Lighting Corp. v Goldstein, 151 AD3d 1102[20 171). Consequently. this branch of Singh and Patel' s motion is denied. -5- Prlflted 1OIJ/201 [* 6] Page 6 ol 8 92(><'2013 ORDER SIGNED SEQUENCE #6 Plaintifrs Fifteenth Cause of Action invokes the Faithless Servant Doctrine (see Feiger v Ira! Jeweby , ltd. , 41 NY2d 928 [ 19771; William Floyd Union Free School Dist. v Wright, 61 A03d 856 f2 009]). claiming that Singh and Patel. as agents of plaintiff, were disloyal to plaintiff in conspiring with Assets to take over the lease to the subject premises while plaintiff was still in possession of such premises. Defendants' papers, in support or summary judgment dismissing this cause of action, demonstrated that Patel was never an employee of plaintiff, so this cause of action as pertaining to her is dismissed. However, movants have left questions outstanding as to whether Singh was employed by plainti ff. and. if so, when negotiations between Singh and Assets took place with regard to the existence of the lease term with plaintiff. Such credibility and factual issues require a denial or thi s branch of Singh' s motion to di smiss the Fifteenth Cause of Action. Defendant, Assets, also moves for summary judgment. on li ability, on its counterclaims, alleging a breach by Terrace of the lease and of the terms of Stipulation IL both arising from the damaged condition alleged to have existed attcr plaintiff vacated the subject premises. Hinder. on bchalf ofTerrace, denies responsibility for the alleged damage. stating that no such damages were present when he vacated the property. As material questions of fact remain in thi s regard, Assets has failed to prove entitlement to summary judgment on its counterclaims. and this branch of its motion is denied. The Mehra defendants cross-move for summary judgment dism issing the cross claims of codefendants, pursuant to CPLR 3212 and General Obligations Law§ 15-108 (b). On or Jbout January 12. 2017 plaintiff settled its claims in thi s action against the Mehra defendants. .md released said defendants. G.O.L. 15-108 (b) states, in applicable part, that·'[al release given in good faith by the injured person to one tortfeasor ... relieves him from liability to any other person for contribution as provided in article fourteen of the civi l practice law and rules:· There being no evidence that the release by plaintiff was not given in good faith herein, and codefendants having failed to oppose thi s branch of the cross motion. summa ry judgment on this ground is granted, and each codefendant's cross claim seeking contribution from the Mchra defendants is dismissed . The Mehra de fe ndants' cross motion also seeks di smissal of codefendants· cross clai ms for indemnification, contending that there is no evidence of any contractual indemni fieation in this matter, nor should common-law indcmni fication apply as any liability of Assets. or of the Silberman defendants. would be based upon their own wrongdoing. and not on any vicari ous liability. solely by operation of law due to a relationship with an actual wrongdoer (see McCarthy v Turner Constr., Inc., 17 NY3d 369 [2011 ]: Bryan v CLK-HP 225 Rabroa, LLC.. 136 AD3d 955 120161). Assets. Singh and Patel contend that their role in re-entering the leased premises "was passive" in nature, as they relied on the terms of Stipulati on IT, which was forwarded to them by the actively-engaged Mehra defendants. and. -6- Pnnted 10131201 [* 7] ~54'2013 Pape 7of8 ORDER SIGNED SEQUENCE t6 as a result, implied indemnification was warranted. I lowever. as there existed no relationship between Assets and Mchra. no implied indemnification was available to Assets (see Mas v Two Bridges Assoc.. 75 NY2d 68011990]). and this branch of the Mehra defendant's cross motion is granted. dismissing Assets· cross claim for indemnification against them. However. with regard to the indcmni fication claim brought by the Silberman defendants against the Mehra defendants, there is an issue as to whether any relationship existed between them which would give rise to common-Jaw indemnification. The parties disagree as to the role played by the Mehra defendants on behalf of plaintiff: whether the Mehra defendants and the Silberman defendants acted as ..co-counsel'· on behalf of plaintiff; whether there existed a de facto retainer/payment agreement between them: and whether each, or either one of them. may have been negligent in the transactions on behalf or plaintiff, culminating in an indemnification possibility herein. As outstanding questions or fact remain on these issues, this branch of the Mehra defendants' cross motion is denied. The Silberman defendants cross-move for summary judgment dismissing the action against them. pursuant to CPLR 3212, and for sanctions and/or costs. Liberally construing the evidence in a light most favorable to the nonmoving plaintiff (see Chojnacki v Old Westbury Gardens, Inc., - AD3d - , 2017 NY Slip Op. 05706 [2d Dept. 2017]; D 'Esposito v Manetta Hill Auto Service, Inc., 150 AD3d 8 I 7 f2017J). such evidence. and plaintifr s opposition evidence. demonstrate the presence of unresolved material issues offact regarding each cause of action against the Silberman defendants, which would deny judgment to said moving defendants (see Zuckerman v City ofNew York Transit Auth., 49 NY2d 557 [ 1980): Ge/stein v City ofNew York. - AD3d - . 20 I 7 NY Slip Op. 06064 [2d Dept. 20171; Baird v Four Winds Hosp., I40 AD3d 8 I0 120161). Further. and contrary to the Silberman defendants· contention. the evidence submitted in support of their motion. in the form of the emails allegedly demonstrating plaintiffs knowledge of the terms of Stipulation II, was not ·'documentary: · as it was not of undisputed authenticity. unambiguous and undeniable (see Anderson v Armento. 139 AD3d 769 [2016]; Pasquaretlo v long Island University, 106 AD3d 794 f2013 J: Kopelowitz & Co., Inc. v. Mann , 83 AD3d 793 f2011 J), and failed to undeniably support movants ' claims or utterly refute plaintiffs factual allegations (see Goshen v Mutual life Ins. Co. o[NY, 98 NY2d 314, 326 f2002]: Clarke v Laidlaw Tr., Inc .. I 25 A03d 920 [20 I 51: Comprehensive Mental Assessment & Medical Care, P. C v Gusrae Kaplan Nussbaum, PLLC, 130 AD3d 670 f2015]). As such, it failed to resolve all factual issues as a matter of law. and conclusively dispose of plaintiffs claim (see Sciadone v Stepping Stones Associates, L.P., 148 AD3d 953[2017); Town ofHuntington v Long Island Power Authority, 130 /\D3d 1013 f2015]), and this hranch of said cross motion is denied. The branch of the Silberman defendants' cross motion seeking sanctions and costs. pursuant to 22 NYCRR 130-1 . I (c) (I). is denied. While a court, in its discretion. may award -7- ?nntcd 10/31201 [* 8] Pago 8 ol 8 925<~13 ORDER SIGNED SEQUENCE 16 sanctions and costs for frivolous conduct. the party seeking such relief has the burden of proof on thi s issue, and cross-movants· have failed to demonstrate that plaintifrs claims arc devoid of legal and factual merit, and should be considered to be frivolous conduct under that statute (see West Hempstead Water Dist. v Buckey e Pipeline Co .. L.P., - J\03d - , 2017 NY Slip Op. 05473 [2d Dept. 20171; Stone Mountain Holdings, LLC v Spitzer, 11 9 AD3d 548 [2014]). Accordingly, defendant, J\ssets· motion for sum mary judgment dismissing the Eighth through Thirteenth, inclusive. Causes of Action of plaintifrs complaint is granted. Defendant, Singh and Patel 's motion for summary judgment dismissing the Fourteenth Cause of Action of said complaint is denied. The branch of said motion seeking summary judgment dismissing the Fifteenth Cause of Action is granted with regard to defendant. Patel, and denied with regard to defendant, Singh. The branch of said motion seeking partial summary judgment for defendant. Assets. on its counterclaims, is denied. The cross motion by the Mehra defendants seeking summary judgment dismissing the cross clai m of the codefcndants for contri bution is granted. The branch of said cross motion seeking dismissal of the cross clai m for indemnification is granted as to the cross claims of Assets, and denied as to the cross claims of the Silberman defendants. The cross motion by the Silberman defendants is denied in toto. Dated: AuguJt i 201 7 J.S.C . -8- Printed 10131201

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