Sze Kong Realty Corp. v Tsang

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Sze Kong Realty Corp. v Tsang 2018 NY Slip Op 30633(U) April 11, 2018 Supreme Court, New York County Docket Number: 152674/2015 Judge: Robert R. Reed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/11/2018 02:38 PM 1] NYSCEF DOC. NO. 118 INDEX NO. 152674/2015 RECEIVED NYSCEF: 04/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: l.A.S. PART 43 --------------------------------------------------------------------)( SZE KONG REAL TY CORP., Plaintiff, Index No. 152674/2015 DECISION & ORDER - against TOMMY TSANG, PAO CHUNG LEE, ALBERT LEE, NORMAN LEE, HAIYANG, WANG, YUE YUN CHEN, JOHN DOE and JANE DOE, Defendants, Motion Seq. 004 -------------------------------------------------------------------)( ROBERT R. REED, J.: Upon the foregoing, this motion is GRANTED in part and DENIED in part. In this ejectment action, this court previously ordered moving defendant to provide access to plaintiff building owner to the third floor in the building to which moving defendant claims contractual entitlement as tenant. In making this ruling, the court determined that the building's third floor is subdivided in a manner that is inconsistent with the building's registration with the Department of Housing Preservation and Department. The court's purpose in ordering the non-resident moving defendant to provide access to the third floor was to allow the building owner to cure violations identified in a NYC Department of Buildings "Peremptory Vacate Order" with respect to certain specific floors in the building, including the third floor. Moving defendant has failed to comply with other orders in this litigation prior to the court's most recent order. Rather than seeking to appeal this court's most recent order, moving defendant simply ignored this court's specific directive to provide access on a date and time certain, and instead sought the within order to show cause. By this order to show cause, movant seeks (a) to amend his answer to include counterclaims, (b) a preliminary injunction to prevent the "destruction of the apartments on the third floor," and (c) a mandate that, in curing the 2 of 5 [*FILED: NEW YORK COUNTY CLERK 04/11/2018 02:38 PM 2] NYSCEF DOC. NO. 118 INDEX NO. 152674/2015 RECEIVED NYSCEF: 04/11/2018 violations identified by the Buildings Department, plaintiff building owner preserve the apartments on the third floor as they currently are configured. The motion to amend the answer to assert counterclaims should be granted. Courts should freely grant leave to amend a pleading if there is no surprise or prejudice to the other party (Kocourek v Boaz Allen Hamilton Inc., 85 AD3d 502, 504). It should come as no surprise to plaintiff that moving defendant would desire to assert counterclaims for relief to the extent that any remedial construction in the building results in a diminution in the value of his alleged leasehold. Nor is there any prejudice to plaintiff, as it fully expects to pursue its own claims for monetary damages in and through as yet nascent discovery. Moving defendant's assertion of his need for extraordinary relief, however, is baseless (see CPLR 6301 et seq.). Moving defendant has no likelihood of success on the merits with respect to the issue of curing Buildings Department-identified violations through remedial construction - as the court has already ruled against moving defendant on this point by prior order, and, importantly, moving defendant has not timely appealed that prior order or obtained a stay of the enforcement of that order. Moving defendant, moreover, cannot show irreparable harm - as he, indeed, now seeks counterclaim relief to compensate him monetarily for his presumed economic losses as a result of the court-mandated access grant and remedial construction. Again, it is noteworthy in this context that moving defendant is not a resident of the building, but seeks here to protect only his economic interests as a potential sub lessor of the subject third floor. Moving defendant also cannot show that the balance of equities tips in his favor - as here, it appears that moving defendant has defied this court's most recent order as to the granting of access to the subject third floor, as he has violated other prior orders in this action. Additionally, the purpose of the access grant was to cure Buildings Department- 3 of 5 [*FILED: NEW YORK COUNTY CLERK 04/11/2018 02:38 PM 3] NYSCEF DOC. NO. 118 INDEX NO. 152674/2015 RECEIVED NYSCEF: 04/11/2018 mandated violations in order to bring the configuration of the third floor into compliance with the building's registration with HPD. Thus, as compared with the need for mandated prospective remedial construction, moving defendant's desire to maintain the third floor's current subdivided configuration for his own economic purposes is subordinate. Also, to be sure, preserving the status quo in this instance, with a third floor configured in what the Buildings Department deems unlawful, based on the building's registration with HPD, diminishes the current value and use of the building - as it renders a significant portion of the building uninhabitable as a matter of law. Finally, plaintiff has alerted the court, by attorney affirmation, of moving defendant's apparent noncompliance with the court's most recent prior order, and suggests in his affirmation opposing the OSC plaintiffs entitlement to certain relief as a consequence of such noncompliance. The court declines to provide the requested relief or any sanctions or finding of contempt without a formal motion (upon notice or by OSC), supported by an affidavit of a person with first-hand knowledge. Accordingly, it is ORDERED that the motion is GRANTED in part and DENIED in part, inasmuch as it is granted to the extent it seeks to amend movant's answer to include counterclaims, but denied to the extent movant seeks either a preliminary injunction to prevent the "destruction of the apartments on the third floor" or a mandate that, in curing the violations identified by the Buildings Department, plaintiff building owner preserve the apartments on the third floor as they currently are configured; and it is therefore ORDERED that moving defendant serve and e-file an amended answer with counterclaims in the form appended to the order to show cause supporting papers within 15 days; and it is further 4 of 5 [*FILED: NEW YORK COUNTY CLERK 04/11/2018 02:38 PM 4] NYSCEF DOC. NO. 118 INDEX NO. 152674/2015 RECEIVED NYSCEF: 04/11/2018 ORDERED that plaintiff serve a reply to the amended answer with counterclaims within 30 days of the service upon it of such pleading; and it is further ORDERED that the parties shall appear for a status conference in Part 43 at 111 Centre Street, Room 581, on July 12, 2018, at 11 :00 a.m. Dated: April 11, 2018 5 of 5

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