1002 Realty Corp. v Gilgurd

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1002 Realty Corp. v Gilgurd 2018 NY Slip Op 33329(U) December 4, 2018 Supreme Court, Kings County Docket Number: 513071/2015 Judge: Carl J. Landicino 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. [* 1] p At an IAS Term, the State of New County of Adams Street, Part held York, at the Kings, Supreme for in and New Court of the at 360 Courthouse, Brooklyn, of December, day 81 of the on the York, 4~ 2018. PRESENT: HON. CARL J. LANDICINO, JSC ---------------------X 1002 REALTY Index CORP, 513071/2015 No.: Plaintiff, AMENDED TREK DECI - against- GILGURD BORIS EZ-DUCT WORK EZ DUCT d/b/a WORK, INC., INC., Defendant(s). -------------X Warren S. Dank, for Attorney Warren Esq. Plaint' S. Dank, 62 Belmont Andrew M. Attorney for P.C. Esq., Circle 16 Court Syosset, New York Plaintiff 1002 Realty 11791 Defendants 4 Friedman Esq. Friedman, LLP Sanchez, €”26~ Sheet New Brooklyn, Floor York 11241 HISTORY of a Summons filing "Defendant ) interposed Defendant's on January breach of contract and maintain the 'Plaintiff Gled Amended any reft'e.-ice the Complaint to the filing two Summons and Complaint 3, 2015, refers on Answer A-;Laded 1 Gilgurd EZ") 17, within meruit $465,125.00. filed 26, had been Complaint and filed (hereinafter Plaintiff the the replied Co.iiylaint: damages 17, 1) totaling Defendants 2015: subsequently Gled by the Counterclaims" The December 2015 2015. arid action (collectively Defendants' to claims totaling No Answer to the Answer three October Boris Dec~rnber 2) quantum ~=-"---==s in their counterclaims on November "Comp'laint" Verified $462,125.00, this "Defendant on following commenced Defendants counterclaims the totaling and 2015. (hereinafter "Plaintiff's enrichment "PlaintiR") 26, Inc.. with maintains damages 3) unjust following by October Work, an Answer Plaintiff and on EZ Duct Answer 12, 2016. $462,125.00 Complaint and Gilgurd") "Defendants" to the and (hereinafter Corporation previously. on November filed an Accordingly, 3, 2015. . [* 2] 30. reason "...By within action which exceeds 33. "...The a civil defendants, and dated of Note action December was on filed for all injury, of 17, instant action to its damages Courts." a device in of injuring of and has the caused the in an amount lower all an amount was the purposes process" "abuse the jurisdiction Issue and constitutes to suffer [defendants2] of the filing of the plaintiff damages.in Courts;" lower of the the by suffered have jurisdiction plaintiff's of prosecution malicious defendants the furtherance exceeds of the the which Answer (Defendant's 2015) December This 5, 2016. matter was assigned Part to this 81 by .. the Honorable from by the the trial, the parties Upon receipt decision on that error This on page substantive 7, 2018 Court 20. changes have error been and has a "So the matter Decision been the a trial was fully in this was over the Term) scheduled course On the final trial Ordered" on November corrected time occurred with Civil DiStrict, 15, 2018. February with 7, 2018, a Trial matter together accordance May issued That in this Summations in on trial Judicial at which 7, 2017, 14, 2017 written submissions day. The parties. 2nd Judge, on August December to have May (Administrative Part of the 2017, agreed of the calculation other 17, on or before Court Assignment Stipulation October days; J.S.C. Knipel, Trial Non-Jury Ordered" "So three Lawrence day transcripts of of submitted Stipulatiori the parties. for submitted and reserved 21, that contained 2018, Trial Amended to Decision a but n1ade. TESTIMONY Mario Martinelli Mario "managers" Martinelli of the 2The.Answer accept this that states the constitutes (hereinafter Plaintiff "plaintiffs" counterclaim a ministerial corporation. but relates "M.M." He or "Martinelli") indicated as this relates Defendants' to error. . 2 to that testified the other Defendants' alleged injury that he was "manager" counterclaim, and not the one Simon was the of the Court Plaintiff's will and that no [* 3] Rubinov. located (Tt. 10/1'7/2017, at 1002 Jamaica commercial building 10/17/2017, Pg. and building "Premises" Exhibit Simon Rubinov confirmed Gilgurd a shareholder testified that before his was a one-third The witness in the business in or about clarified that had operated the (Tt. out prior It was the 1990. business 10/17/2017, of a space business. Boris me, started 10/17/2017, was Pg. located V and 19, L,ines in the The Pg. 13, Subject 22 story the (hereinafter as Plaintiff's Lines The witness and that Gilgurd The witness 4-10) now. I don't that in a mechenlbal partners Mechanical and - Pg. (Tt. 10-16) . of children the 11-15) R and Defehdant or ex-wife previously witness and 13, 13) 10/17/2017, were ceased The full the Pg. He doing witness and "V&R"), that we Goldberg." partners 14, Line testified and Norman the (hereinafter Property. 3 Pg. B and 1983 The owned Corporation Rubinov Line a one (Tt. of trial. shareholders; 12, Lines Lines 13, was R Mechanical 15-21) Consent "wife he were in or about on Plaintiff Simon Gilgurd, York Martinelli Pg. Pg. name New of Gilgurd's and time building was building Plaintiff (3) 10/17/2017, 10/17/2017, Gilgurd that three children of the (Tt. the the 11) had shareholder, Mr. business (Tt. 2016. (Tt. that a mechanical that of as one-third shareholder. buainana explained corporation. role Line he managed at the admitted 10/17/2017, sliareholder part early explaiñêd had (Tt. a one-third in the Premises to the related "Rubinov"). was Brooklyn, Corporation Plaintiff respectively (hereinafter "We the Avenue, 11, that property confirmed 12 - PÎ. estates" "two became partners that the witness to the 10 Line Pg. stated Jamaica (Deed Property") 10/17/2017, that business. as 1002 that testified indicated York, occupied 9) The Line 10, witness New tenants seven known witness and that The 18-24) Brooklyn, 9 - Pg. property Gilgurd further and 9 Line 1). (Tt. 8, Lines Avenue, or "Subject The know" Pg. V that and it was a R business 15, Lines 3-7) . . [* 4] The witness 1992. (Tt. space at the which Subject The (dated witness May that Pg. 10/17/2017, (Plaintiff's 6) The there that was there was (Tt. was rent, means Pg. 10/17/2017, The 2010 He only building." leased utilized, (Tt. constituted the was prior that effective water paid that was going 29, Lines 6,000 uppwximately Space. failed I believe. a monthi Pg. 10/17/2017, Line 29, (Tt. And No per month square 10/17/2017, parties And stated The a month going square feet agreement signed as the that then the per the (Tt. Current Pg. Lease Exhibit witness stated the rent, to maintain 2) Space Leasehold the 2- Lines 28, (Plaintiff's for current month. 10/17/2017, to the Gilgurd. agreement a lease into Lease in relation he was Gilgurd $5,000.00 (Tt. $2,000.00 to pay 6,000 leased 10) to entering Current and but that "[t]he plus building." . . 2) to pay after The feet. Pg. 4 to the rent that was witness The 37, Plaintiff, he started rent additional 19-25) was prior of the that V&R to a lease it was witness that Plaintiff insurance. Gilgurd September $2,000.00 Leasehold the and date the between 17 - Pg. Line testified '12, between [Gilgurd] taxes, stated $2,000.00 paying The Space Leasehold that and 15) Line 20, indicated Plaintiff Line 23, witness to the 2 and pursuant approximately - Pg. in or about that specificallý Premises, 22 ILine 19, Plaintiff the by more constituting of the the for The 19-21) space purchased stated of the Exhibit 2 - Pg. paying agreement 28, witness throughout 2015. . a verbal for behalf Line witness owner Pg. on agreement/lease agreement additional month 22, was that no written per Plaintiff's 2) Gilgurd stated prior 10/17/2017, Pg. Lines 27, the was Property The 11-18) he signed Gilgurd Exhibit witness verbal that Subject from shown 10/17/2017, rent monthly (Tt. was 9, 2017) (Tt. Tenant. $4,800.00 Space"). the 15, Lines Premises for "Leasehold that Pg. 10/17/2017, provided (the indicated same Lines paid. testified space 8-15) "[s]tatting January paying rent from 2012 And he did not maintain that that the space V & R had that to Gilgurd previously the [* 5] witness The fact "I that not him the Pg. The feet square . The additional witness the witness (Tt. $457,091.42." Pg. 54, was The A3) paying by the square from the 7,500. Space on January the rent, will Gilgurd Defendant the or iiiai7aging the paying from go up witness the Premises 30% $6,000.00." to about Subject additional it was rent, (Tt. I don't Lines 29, amount due Pg. 32, Lines generally ranged $3.00 and the exact $3.00 square that the to 2015. 30, in my of period 1,500 up change that per square head. the foot Pg. 12/14/2017, the Thereafter, But period testified (Tt. and rent Exhibit aforementioned $20.00 foot. for of Plaintiff's witness The from when amount review for owing 1-24) per September Upon 13-19) gave "He "$115,000.00" Plaintiff have recall the 7) through 2010 feet." not for Defendant square did Line 25, the by 6,000 owed January.1, Pg. was The Defendant thousand. utilized one And 14 - Pg. Line the total footage building." approximately Plaintiff contained part that identified the made rent not the is 9 the was lease price per that and 53, that 10 - Line . against "Defendant's Leasehold he was the 24, 2) prosecuted exhibit Pg. Premises, witness submitted of the 12/14/2017, at the Line area something that (Tt. Defendant was 12/14/2017, concluded foot "One the period "450 amount." square that testified for stated, witness front that the he confronted 6-19) 12/14/2017, rent fact of 2010 for rent that testified of the in January to the 18, Lines changed. (Tt. occurred. paying property witness to 2015 2010 not due that maintaining 12/14/2017, that was Gilgurd advised stated the Exhibit of Defendant's Defendant's in relation to a prior in relation Defendants a document A that is.compromised Exhibit A Exhibit was of Court Civil to the a chart as a document approximately 5 Bc T) Leasehold indicating A. (L The tenants 30 pages Defendant's proceeding Space. the of (Part of the witness at, and separate Exhibit Plaintiff confirmed layout that of,.the documents, all [* 6] Premises and Line 59, dedicated witness The riever terms of the Plaintiff. insurance utilities, - Pg. Line 68, between him and water The did (Tt. 12/14/2017, only tenant Pg. 21 - Pg. Line 58, contention Plaintiff's Pg. 12/14/2017, that Line 70, He In addition, rent. abide stated "[H]e Plus by there the no 72, further Line from that the maintained 1) rent Premises. of the from did the and not The did (Tt. other oral than proceedings abide the witness verbal testified Pg. agreement 67, Line the with in relation Gilgurd to the agrccmcnt. in relation of 2) 30% discussions or Court by plus month, he The 12/1.4/2017, of the start that, per did because building," the and to abide Defendant comply fully in 2003 failed the to 2010 not at $2,000.00 made Defeñdañts 2003. ever writings 23) that he never terms Gilgurd to have building agreement He that of were Defendant 16 - Pg. all to an oral rent. was, confirmed of the paid 3) management witness relate he stated agreement and Rubinov, terms. the 13-19) claims agreement. oral not Lines 66, Plaintiff's additional the and/or Pg. written verbal that 25) Gilgurd Defendant the 30 percent confirmed no EZ was Defendant the of 2010. with the paid that that were in January comply witness 22 behalf 12/14/2017, stated there that fully (Tt. witness confirmed not on confirmed parking. the created 7) The by it was that (Tt. to the terms of the verbal agreement to last for And the based rent two and stated, or three years on the would discussion have gone "[b]ased until he would nothing up on the gradually. would That discussion have that picked have changed is what 8-15) 6 we up we had, the the - - his except discussed". agreement business that two (Tt. was would or three 12/14/2017, supposed increase. years Pg. later 80, that Lines . . . . [* 7] The witness of time periods in Brazil. eight approximately information from was in the located States. half." October. (Tt. referenced and indicated witness the Subject that during in he stayed he had last The been from June the for that in October. (Tt. 8) in the for a month from 2009 the including Line country Italy office he lived that since the . Rubinov 88, "[a]bout been clarified not - Pg. 21 of Italy he had weeks" to in that from He stated out he received specified Line for Brazil information 2009. significant in Brazil in further he was witness three while 86, after to Italy visit weeks, Italy Pg. Italy time 9-24) "[t]wo this testimony to that Lines 88, he received 12/14/2017, he was that He he spent 2009 period Premises. to his that that confirmed visited prior prior for (Tt. through of 2003 during that and he regularly just Pg. when visit, The year. that that times" or three that in Brazil. that 12/14/2017, "[t]wo Italy denied period stated of Rubinov indicated further the concerning he was a month He witness each office when He approximately The residence witness The United his from that months periods the during confirmed and June he had a to been to previously Pg. 12/14/2017, 9- Lines 89, 22) After sheet "...we 2003 the metal dissolve comes Leasehold 12/14/2017, The (La with Candella Gilgurd the in." Pg. 92, witness and Lines Pg. in the business at the Leasehold in to the remain 91, 3 - Pg. Line space, not 92, a retail of the Space, That space. space, and witness that work witness is where 1) The Line duct fabricating out agreement acknowledged it was . that stated the of unfinished. in that (Tt. 2-7) at the . (V&R) a commercial confirmed Restaurant) been [Gilgurd] 12/14/2017, was he had Rubinov partnership. (Tt. Space that testified having that Plaintiff Premises had for sought non-payment 7 Court intervention of rent. (Tt. to evict 12/14/2017, another Pg. 93, tenant Lines [* 8] The 1-17) Premises in relation the restaurant, or six months Line 97, listed (Tt. months The the witness rent was going He up so many violation the stated . for the further and $2,Ó00.00 he did the that not rent know. pay was with Gilgurd And meeting for the the end doing never He did." I put to $6,000.00 (Tt. its Pg. and that he did (Tt. not the he had to going 105, agreement take 12/14/2017, care of Pg. we the because building, 107, Lines his of his we had The 4-13) the that gave a the to replace give·us Lines in 2010, him that in. was because to him I mean, where interest building with forth and we explained no meeting January a back he was were "...the 2010 I discussed sidewalk us that rent of it through. 12/14/2017, month." as Club), occupied had witness to that had followed on notice the meeting But well. him a 1) As - - we the promised 18 - Pg. Soccer never "...five Line (as Defendant) in January of the he had know, he just additional Rubinov that Line 105, conceming he never the going - Pg. wasn't see him. to which "[a]t he met 24 10 H), for 96, (Bellavista Exhibit as a abated Pg. 12/14/2017, tenant and 15) department building sidewalk, business was at the 9) Line you He, rent that (Tt. (as Plaintiff) "[b]asically to $6,000.00. Line 101, Line 104, as follows, We went whole.sidewalk. pay Pg. when and use, (Plaintiff 98, space to be utilized a property/business 13 - Pg. that you Gilgurd concerning stated the - Pg. a specific was a proposed trial that Candella) C.O." the that for 21 that Line chances, from Line 100, us that told 97, lawsuit, 12/14/2017, testified business. him witness (Tt. prepared La legal get acknowledged confirmed Pg. 12/14/2017, to achieve have list Pg. in another mess." also able indicated then Intriago, would they tenants witness adversaries rent witness (first never until of questions, to a series tenants were 12/14/2017, The a tenants The 11) to two on Plaintiff's space. (Tt. in response witness, to money witness he did that 12-15) not pay from The [* 9] witness (Tt. also confirmed paid Lines from witness space 12/14/2017, Pg. 117, his and the business 18 - Pg. Line 118, told witness 1, 2010 to . him that confirmed September business that the after (Tt. 2012. 31, was bad and he protested. 2010 January meeting Pg. 111, that he then 12/14/2017, Subject The of the Premises witness confirmed and tenancy and began that 2013 a written without business, on Exhibit 1, 2005. January after School possession Plaintiff's identified dated Premises, witness at a Karate self-employed his lease. (Tt. October 30, 13 as the lease (Tt. Pg. 12/14/2017, possession 1991. of the between Line 117, was Premises Pg. 12/14/2017, (Tt. 119, Lines Zawgari The witness and years." written Line he was 3-9) The 21) 22-25) Premises at the owner to a month-to-month Mohammed that Lines subject 124, time The 7-8) January testified occupied currently as the at that Lubitsch The many Lines 111, nothing Gilgurd 14-18) Myron . Pg. 12/14/2017, Gilgurd that testified utilized (Tt. lease the the as a "deli space 12/14/2017, for he then that Pg. space, occupied currently grocery". 122, Lines dated June 8-18) of 2009. 11) 9 commercial He indicated The witness (Tt. that space he had identified 12/14/2017, at the "...been 122, for there Exhibit Plaintiff's Pg. Subject Line 22 - Pg. 14 . [* 10] Defendant When witness asked Norris witness Space. Martinelli and The and 2005, each." leave for . Rubenov. Pg. to the owner corporate per at $2,000.00 and Rubinov confirmed that for continued The other äuother Lines building, 2-20) The that rent with from and that not witness Pg. through 2005 per at $2,000.00 acknowledged that in New corifirmed tork that and prior 6, Lines Pg. 2015 the (Tt. proceediñg 10 in the located . businesses, related that in 2005, did 7, Line 11) The business against businesses Pg. relationships Rubinov of the the not rent other was after witness Leasehold 12-15) concerning in relation (Tt. paying change at the 7, Lines to the.Premises. cormñêñcement were tliat rent 2/15/2018, "[Martinelli] businesses the operating percent 10-14) testified that through "...33 Premises witness and he had the the 15 - Pg. 6, Line to his 4-11) ("Boris") in business to 2005 The charges not 5, Lines Metal Sheet in those the Defendant Pg. Premises stated witness Plaintiff. and another Boris owned of 2003 month. Rubinov he commenced located 9) The additional no that 2/15/2018, he remained partners period the Premises, partners and 2/15/2018, the during at the stated also Work 13-23) three 6, Line (Tt. V&R, two Rubinov the (Tt..2/15/2018, period to pay - Pg. retired." month 5, Lines to 2005 (Tt. offices he had Martinelli, 24 of the left. the witness properties Pg. of 2003 5, Line that He 2012. companies, EZ Duct called wife." my maintained stated that confirmed Martinelli Space further [Rubinov] witness three 2003, and December since (Tt.2/15/2018, period and in my son ("Norris"), represented the - - Premises, that witness 2/15/2018, The charged The witness Brazil at the to a company relationship any company Mechanical during (Tt. it's confinned Cooling Leasehold he.had "[y]es, an office The rent whether responded, EZ maintained and Gilgurd Boris 2/15/2018, action to Pg. neither 8, [* 11] or Rubinov Martinelli Leasehold of the The the A Z..." to Space 17 - Pg. Line services to the Plaintiff Plaintiff. (Tt. 2/15/2018, .. witness The not no . 11, Line true. submeters Keyspan." 18-22) Boris the (Tt. in relation Pg. utilities and witness represented The witness testified (Tt. of that that 2/15/2018, Pg. witness represented The (Tt. 2/15/2018, trial his space Pg. was that between The 35, 6,000 15, Line his Line that 21 square I pay 2003 witness wife and 6 - Pg. 13, Line never he was - Pg. 36, feet. (Tt. 2012 son. He 16, Line Line use of our (Tt. building." Pg. 2/15/2018, who charge at no Premises, we are it, in this a bookkeeper from building to fix to be done of occupancy 10, rendered to the the He agreement also "Yes, of the that testified to gas directly was parties there were company 4) with he was that indicated he managed gas" affiliated and and care agreement. $2,000.00." electrical, use supposed concerning pay 10 - Pg. 12, Line were entity we just his concerning 6) testimony "I pay a corporation. Metal, principals that Line I take employed of the management to the and of the he also 12, rent him 6-10) to be needs terms that 5 - Pg. Line partner, Pg. 2/15/2018, stated Martinelli's I was the 9, Lines is broken, supposed with approached relating the pay - if something to the 11, that The Sheet entity. witness terms, "I what's 4) The Pg. 2/15/2018, that necessary he complied ever behalf) agreement were that when for oral everything stated "Because the any territory, confirmed (Tt. Premises, rent, on their Premises. that at the the to clean witness at the testified "Collect supposed The Space witness Leaschold parties (including stated EZ. (Tt. that at the operating EZ began not Premises in 2012 operating he was Pg. 2/15/2018, a shareholder 14, Lines as and that in 1) the Subject Premises 1) The witness stated 2/15/2018, 11 Pg. 37, Lines "[f]rom that 20-25) from 2003 2010 to 2014, to the time 15." of [* 12] to why As witness take the day, fix the The don't space with him school what and don't doesn't says school don't I told of money. him to the Line and this, 1 - Pg. to the and with I paid And me. 15 nmnthS I can't They 41, this take supposed Line Pg. Plaintiff's 2012 and I told to restore school and this in of money. because 18) 12 lease When in the give it was verbally the gas meter. me answer. don't same the equipment discussed like rent." this we and court, and still electrical what money be working a lot told between (Tt. restaurant to pay can He just discussed plan amount It was space do you the don't two of money what school from paid and school the contention space, twice.in all Lines amount tenant, to pay 38, leased this, what was school, Pg. was this time system, 1) rent knows is your All was month we During the his Avenue same I supposed restaurant me every The electrical. "[Rubinov] to court to pay the Jamaica discussed twice no in fix gates, Line Pg:36, [Rubinov] it was electrical. and money." gas. broke. 2/15/2018, that When [Rubinov], amount big "1002 electrical. was Tenants the for and - 21 was who reflecting allegation school. [Rubinov], gas Line stated the (Tt. the the tenants, what's fix fixing." other [Martinelli], matter documentation 35, the and property, for pay any with big, him have meter And disconnect gas, we for than retired, cleaning have for court. to ConEdison same court. be paying [Rubinov], came The lot 14, tenants pay electricity. tenants will over take pay. I discussed who to the space don't electrical, restaurant Con-Edison bill, 40, for 31, one restaurant, not foot in it. It doesn't 2/15/2018, in relatiòn square [Rubinov], paid, he did (Tt. per building [Plaintiffj that rent involved the September happened. rent pay He for meter have Not testified no Nobody property. through period manage indicated witness one we pay. the 1, 2010 spaces, . we he maintained January building. night, witness The do. and sewer, 11-19) that the during in this of our care a lower be paying "[b]ecause stated, Brazil, he would on of money, me, take [Rubinov], 2/15/2018, Pg. a [* 13] The demand witness in relation Simon Gilgurd were witness a company, square that there witness Pg. 54, rent his the the witness to him and Pg. did not 55, that change Pg. 52, June from occupied of time 2016 the that Line 1) The 1.3-24) 1, 2003 for were Pg. would to January The Pg. the the be deposited pay the that (Tt. the 2/15/2018, mailing 55, Line Giigurd's to do secretary confirmed 1, 2010. by so. Pg. (approxiniately witness confirmed 8 months per that year) Martinelli visited from - 2013. 2003 13 Brazil (Tt. four to five 2/15/2018, times Pg. 59, per Lines 1) The (Tt. of the 57, 21) The at secretary, agreement 2/15/2018., The 4-14) to Gilgurd 10 - Pg. Line indicated were rent the there, (Tt. just it's Lines 54, tenants the and witness Plaintiff. bringing 54, still he's 2/15/2018, testimony 2/15/2018, witness basically Lines tenants not "[V&R], And of his he did dated Rubinov, Martinelli [Boris]. company to Gilgurd or a notice Rubinov, by (Tt. at the Simon in 2003. EZ. as EZ..(Tt. 56, January business or Defendant to do so and 14 - Pg. doing 52, tenélered checks 1-11) Pg. that of incorporated, a management never stated was Lines was received never parties) 2/15/2018, (Tt. identified the Plaintiff space Transcript of the the and 2-24) Deposition consent Boris before authorized Line for was witness that was secretary 2/15/2018, lease The confirmed all agreement the Lines 42, ceased space." same 2-8) the V&R that there which when 2/15/2018, that Lines on Because written no confinned office parties footage, was checks witness space. Pg. of the record, testified breach not 2/15/2018, that (Tt. no had the testified partners. he did of portions into 2016, witness The (Tt. (Readings 21, The that thereto. Rubinov November same indicated year 2-17) Lines 16- [* 14] CREDIBILITY It is axiomatic had . the position to gauge (2 Dept. 2010), also 278 . opportunity Varga 274 testimony under witnesses and quotations credibility trial court's AD3d emitted) is owed Ning Papovitch Paraimnath by the of Xiang Constr., trial 989, fact to the Liu 890 N.Y.S.2d in v. AlMing court is given 922, a significant 74 AD3d 17 757 on 133 Chen, 1045, 873 15 N.Y.S.3d level 14 86 are matters 904 (2 Dept. N.Y.8..2d 2003), see also 1997); 2009). A.D.3d N.Y.S.2d respective 1143, relating.to determinations." 923 respective 89 (2 Dept. N.Y.S.2d 95 684 credible most considerations credibility 84 A.D.3d A.D.3d v. Guida, N.Y.S.2d measure of the credibility v. Diaco, 596, their during are (2 Dept. 71 court's 419, 663 parties evidence 639, 446, large trial of AD2d AD2d rest the Goldstein 243 59 A.D.3d 130 items 303 the AD2d 257 see 2009); Diaco quoting v. Ferraro, evaluating proffered v. Ivant, v. Papovitch, v. Torres, trial, 2001), 462 N.Y.S.2d (2 Dept. 72 trial best in the 911 1021, the during "was N.Y.S.2d (2 Dept. viewed case, discretion." 888 Ferraro Court accordingly 78 AD3d 750, 576 2000); in this of the Ivani findings 66 AD3d the parties and v. Massirman, a non-jury v. L'Esperance, the v. Marina Court, sound quoting deference quoting The which determining 2010), of witnesses, (2 Dept. "In examination. witnesses," N.Y.S.2d 635 N.Y.S.2d 1999). 732 210, of the credibility of the v. Peritore, AD2d 288 to the Massirman Peritore (2 Dept. "Where Zwarpez credibility." v. Schwartz,.67 Schwartz quoting demeanor L'Esperance quoting 2015) the 717 to the (2 Dept. to view Varga, N.Y.S.2d 117 respect their 358, committed with quoting v. AD2d that N.Y.S.2d 209 (2d (2d Dept. of discretion (internal 19 N.Y.S.3d 644, 133 credibility (2d Dept. and (2d 2011) Dept. · See also, Dept..2009); 2015) 565 An assessment deference by the of " [* 15] appellate The courts. exa±nination between His not the contentions. that the rent in 2010 erty. pro Promises. was Rubinov the He deposition no He was matters demeanor dispute and the over the course of the historý and clear. maintained not called testimony of his of relationship seemed His of the during the property, that was was trial and trial, on consent that of the not property his EZ Duct, conversations believable. therefore of both and His seemed credibility parties. Defendants a higher not credible. Defendant testimony truthful. . area. testimony. guarded MartinellL was What be based to the he seemed with will visits is not in this in his his purported maintain contention Defendant for infrequent made did information sought is also inconsistent consistent the had He testify. support to the he alleged Gilgurd Martinelli's regarding 15 the maintenance with facts that Plaintiff seem not to the relating the occasionally credible of detail during also little was he explained that support relationship recollection to testify read not was generally a level contention the the He.otherwise Italy. on he possessed position period the than there that did rather advocate that and and his did Gilgurd, legal his during reporting business Further, Martinelli that to maintain failure for testimony to his to. rent" in Brazil Rubinov's clear contention time, support witness, belies as "additional premises, deposition regard at trial to not he testified alleged other It was facts. credibility. he seemed and Martinelli's much upon otherwise candid convincing. 4 was reliance with tense. to the taxes the Defendants' Specifically, of the Defendant's maintain Rubinov's The witnesses4 the lacked Martinelli, grasp parties. spent There His reliable. He to the not the the included admittedly did to the related to be planned and between due Gilgurd and manner agreement Martinelli a clear in relation His agreement issues witness, appeared to have to testify oral to observe opportunity many Plaintiff's testimony seem needed the parties. Overall, did had on trial, during the candid. Court is upon . [* 16] . the more, testimony alleged the . the Court's of the notices or communication. This the lends cloud the disagreement of and never was prior to the do Plaintiff's a written lease they entered Premises generally, to charge Defendants provided that annual cost Defendants on a monthly Defendants of real estate contend that the oral &T the contract and Moreover, in to no documentation, Court the were viable, Breach of was and light of the written 11, 2016. initiated serves Plaintiff's based to severely contentions as reflected of denial in April proceeding was intervention commeñeed Rubinov and his evidence of prior instant Gilgurd partners agreement admissible little proceeding that dated a oral lease water May to the the 9, 2016, agrcement 1, 2003. January rent is for in relation agreement maintained taxes, of The indication Notwithstanding of Action agreemeñt or about business was lease further regarding herein. ofAction Cause into no L between breach lease written that agree First there testimony, oral month truthful. generally was per credible. largely position generally. Cause as prior Commercial dispute Defendants' BreachofContract-First The the together there Defendants' credibility issue there for to the Plaintiff's limited the except credibility a separate on In addition, $2,000.00 was the by the also Gilgurd reflected relationship parties, was that finding that working increase rental history between of history $6,000.00 . supported Gilgurd parties' of the a product Defendant by per month, the property and paid and sewer agreement 16 the Lease. Plaintiff Additional parties of was The $6,000.00 per the that it agreed month, of the Premises. they parties, and that at 30% that however, parties, represents for such the Space Rent insurance coñcede between Leasehold instead charges,.and between the parties space Current the However, The Leasehold regarding $2,000.00 of Contract. agreed total The to pay [* 17] of at a rate rent Additional agreed or charges Rent $6,000.00 to pay An oral possession, & [2nd Mandarin his of a contract, 118 Atanasio, A.D.3d v. Dronart 976 establish that the anything more witness, Mario parties than had entered month and Defendants (namely, testimony taxes, 989 [2"d the entered per into testified into an oral that (Tt. Defendant water/sewer the and the tenant 944 to the resulting from [2nd 47 never Tuttle, the agreement.'" action breach." 2014], are "the breach defendant's the contract, [2nd 1110 1104, of 83.1 830, 'demonstrate cause to take N.Y.S.2d N.E.2d the Dept, See ... purported of contract to provide failed Canzona v. Dee v. Rakower, quoting rent for the Pg. to which building. However, also agree The insurance). 17 Defendants Leasehold 28, the the Court rent makes 29, would Court what would The Space. 17 - Pg. Line to pay evidence sufficient the whereby pursuant Gilgurd they 455 831, must pursuant 10/17/2017, agreements maintain would base 830, 181-82, an agreement month no 2012]. has Plaintiff that that premises. of their a breach 44, Dept, subject conditions damages contend permitting of contract 173, of N.Y.S.2d 470 $2,000.00 Martinelli, parties Martinelli's had and performance and proceeding, a breach elements plaintiffs including 90 A.D.2d Corp., terms but Premises, further to the 16 N.Y.3d essential N.Y.S.2d instant the v. Wildenstein, 838, acts by alleging the event. improvements a party 837, in any Realty reflecting Defendants be ratified making manage and The month, obligations, A.D.3d 204, In this rent," Inc. the contractual or her per and "[t]he maintain discussed. rent Ltd. and may "Generally, Specifically, existence 112 Gelston, Trading 2011]. were agreement of a ... contract existence of lease 1982]. Dept, month in rent accepting Pendelton per $2,000.00 this finding 2) that be $2,000.00 he described pay Plaintiff's Line finds to the per incredible as "additional because there [* 18] no evidence was rent." What presented is more, communication to the throughout message, verbal the increase Martinelli the Promises agreed not lease 166 A.D.2d lease.is 652 increase N.Y.S.2d Surgeons the reservation of 565, oral of 560 566, or written. 761, W As property, New [2''d York that "additional a written sent or even an email a letter, in relation action, to the a text of terms alleged such, the N.Y.S.2d Dept, P.L.L.C., term 849, of the have Plaintiff. [2"4 1990]. Dept, This Homeowñérs see also Calkins 1122, 18 868 Corp. N.Y.S.2d any all to these Park LLC v. Eye Dept, for essential whether 235 Parties merease Inc. Inc., the agreement its Ass'n, [4"' Martinelli then 2010, Caterers, 427 the Defendants a valid applies he or managing the smee upon Mur-Mil of 2010 $6,000.00. fact constitute agreement increase. agreed of increased, "To final If in in January negotiations." future 56 A.D.3d not reached of Dodgertown 1997]; Plaintiff could have 850 the by to Gilgurd "...yes." said rent paying increase Defendant that January to this to pay agreed not was on would 12-15) rent act for Gilgurd sought he had in or about that Martinelli rent inust that that Defendants 12-15) January Lines 107, parties any fact the a unilateral See Matter 762 ever evidence the that Lines protested in the of this paid Plaintiff instant sufficient and 107, from rent if Gilgurd a product ever of a notice, to the prior had the that form provide not Pg. Pg. an agreement. in the years about the 12/14/2017, to the Defendants presented to $6,000.00 Gilgurd asked of real did 12/14/20.17, when without terms, Plaintiff as a result been ten the thereof. $2,000.00 (Tt. (Tt. reached have the from that In fact would the and than more Defendant testified terms. had rent evidence whether or a breach testified confronted never the is more, the no was Defendants, agreement What never there that trial the during the A.D.2d v. Werner, subject 538, Physicians 2008] and 539, &. [* 19] Chelsea WL 5024496 [Sup. The . against tenancy and if the Plaintiff's 991, 993, abolished unless the to Real common-law tenancy. in situations parties Plaintiff's only and finds the agreed after upon the of to the the Plaintiff $2,000.00 Court has to treat 232-a. any Page 2) that 2011 113194/10, the tenant See Logan the contract Plaintiff verbal rent does of denies provided rent for not seek Gilgurd has Defendants' evidence sufficient the period 9 the lease, finds of the tenancy the not with rent 825 the Premises as part damages seeking together month, was a creating 759, 758, 232-a term accepted this that of a new a month-to-month possession means Law thereby landlord his 23 N.Y.2d Property 34 A.D.3d Court per the and v. Johnson, $2,000.00 agreement herein paid is an appropriate claim upon that held the seek and for only the R. Co., as a tenant have the Notwithstanding Real of a tenant over, holding held expiration Jaroslow following over held Valley be held the would Then proceeding. that only this Instead, v. Lehigh Court may the after instant the to terminate proceeding as having See Jaroslow period upon. that monthly of Law, Defendant the a holdover 2006]. agreed previously that for where, a breach Additionally, rent Given No. is incorrect. in the Defendants In Jaroslow, previously.agreed pursuant Premises, that Cases remedy. to the been this However, of the [1969]. rule Dept, York, a summary to commencing Law Id. [2"d 243 Complaint, relation the had have 758 757, of New v The.City Memorandum occupancy." Property accepts landlord limited removal would the 242, its sought N.E.2d N.Y.S.2d of and remedy month-to-month that for 246 the is created "is Plaintiff pursuant (Defendant's contend use LLC Ass'n, 2011]. Cnty, Plaintiff recover sole removal N.Y. Ct. the Owners' Property Defendants remedy apply & Business in maintenance of acknowledged. application that of January the for Defendants 2010 through verdict a directed have failed September to pay 2012 [* 20] = $66,000.00).5 x $2,,000.00 (33 that acknowledged . his capou3os was tinclear the not whether these A "from were Z." to (Tt. (i.e., documentary evidence) with the eviction of another agreed actually entitled that to receive witness a credit to provide of the were to pay do or offset per rent any out that the of the proof Second Cause of Action and Second Cause of Action is for Defendant property. the much did not of the to assist is Gilgurd that additional purported whose Plaintiff, at issue, has the maintain adequately had parties the period support no was find for Plaintiff, general the that cannot However, during Gilgurd Court that instructed he was it Further, acknowledgment evidence to the owed country sufficient that regarding unsupported. 4) There 11, Line the such, testimony maintain/manage insufficient As his own and testimony event. Gilgurd, and Gilgurd's 17 - Pg. Boris period, unclear month provided against he was that with to Gilgurd's any this 10, Line Pg. so, in during was in keeping Gilgurd Defendants, Plaintiff $2,000.00 in relation tenant. Plaintiff in maintaining/managing acknowledged failed behalf the for witness to the 2/15/2018, he would he incurred expenses on payments as tenants, the rent pay incurred allegedly Defendants, premises he did While premises. Meruit- Quantum Plaintiff's . that Complaint Premises. market 5 This In its 2010 Court's has been $66,000.00. accordance initial have through Post rent monthly Defendants demands equity Trial Trial September amended The with to show parties and the 2012, have subject that Plaintiff have dated agreed but incorrectly the correct consented to the contends that received by November upon 20, for amount owed correction of the 20 should correctly rent for total this without stated for the period further rent for value and fair have been that (33 months) application the the of January period owed. amount in its alleges niarket fair reasonable monthly parties. the Defendants the Plaintiff The "[t]he 2018 $2,000.00 determined to the stipulation Meruit. be compensated of Action Cause Enrichment-Third Quantum Plaintiff should Decision to pay the the Brief, Plaintiff that failed that Un just decision The is in [* 21] $6,000.00 consistent the years January the chart of with 1, 2010 square detriment of the $462,125.00 Trial Brief Plaintiff from the by contends to pay Plaintiff from January 2010 Calculations Deuuag In response, of the existence Chart the to pay $2,000.00 per theory or under a theory remedy only exists that Defendants breached January for either quantum Court the meruit meruit are there (1) that the is no able Plaintiff 30, trial the between the by not enrichment. to nonpayment services provided "The totaling sufficient elements in good 21 parties. faith, of (2) Court of of the rent such the a already evidence, for parties meruit that has the the a quantum argue This that between Defendants a preponderance damages reflecting of Law under in 9." Exhibit agreement damages of is reflective which 2015 of detriment amount as Plaintiff's the In its Post to the in the Memorandum namely in relation has of September seeking to prove, agreement, 2012, rent Specifically, agreement only or unjust performance from enrichment. additional post tenancy, Plaintiff enriched evidence into in their to month the was verbal including is admitted unjustly amount in the 2015." 30, of Action. to the rent September been and rent and contend September fmds quantum which unjust Plaintiff through 2010 The where the determined of including have monthly through bars month, and additional and in 12." Cause cariched unjustly rent monthly "Defendants the month the reflective was Third as its for footage Exhibit as Plaintiff's been have "Defendants which and Eñrichment square per paying 2015 30, evidence Unjust for through that Defendants Defendants' into Plaintiff 1, 2010 January Plaintiff that to pay failing failing $457,091.42 the by a claim claims were September including admitted makes Plaintiff of Plaintiff and tenants commercial other calculations Plaintiff the Complaint the through footage Similarly, In its what that the of period $66,000.00. to establish evidence a cause acceptance of action a claim sounding of services in by the [* 22] to whom person of the value [2nd 609 at the received s expense, Holding, Defeñdañts contract N.Y.S.3d 266, 268 N.Y.S.3d 201, 202 the rent parties' rent upon Plaintiff and (4) element month of [2nd 232 N.Y.S.2d and unjust not exist. 2016] Dept, 2015]. together essence Dept, are available only v. Horowitz, v. FA Mgmt., has determined maintenance 141 126 Inc., of the that A.D.3d 642, initial the was premises) with the existence the A.D.3d 155 v. R.A.C. agrees where of a 37 643-44, 5 667, 668, oral agreement and has party v. Burke, N.A. Court The 120 A.D.3d one of Syracuse City 1999]. the is that Bank,. 607, ersiched, Inc., enrichment quoting Dept, Thompson Court with [2ªd enrichment See The 2017], 381 v. Expedia, Fargo Wells to permit conscience of Nassau were defendants the of unjust another." ; El-Nahal Dept, month expense Cty. N.Y;S.2d 902 797, reasoñable (4) contiñüêd to be agreement. was the [2"d per However, the [2nd ''The 685 905, meruit recovered." 2014]. 228, or does is in dispute ($2,000.00 at the A.D.2d quatum that to be that good and equity 796, are and therefor, 74 A.D.3d enrichment unjust it is against Dept, 64 N.Y.S.3d v. Illmensee, of is sought or a benefit 258 Inc., that [2"d 293 671, 668, elements of compcasation expectation (3) Wehrum and what N.Y.S.2d money A.D.3d "The to retain 992 1178, . 2010]. plaintiff rendered, rendered." services Dépt, defendants are they failed reasonable that assuming, in dispute, equitable has even Plaintiff is Martinelli's and that of theories to provide value was of the as a result the quantum meruit sufficient proof services expected testimony. that arguendo, the unjust and of agreement can Plaintiff " rendered assuming . 22 The between maintain his expectation Plaintiff's of only at an amount the truth of parties finds Court evidence than statement, regarding theories compensation greater his the alternate the enrichment, an "(3) to be compensated Martinelli, oral based the that therefor, in regard to the $2,000.00 per testified that . he [* 23] told Defendant Gilgurd Gilgurd agreed. determined In fact, pursuant to the Defendant terms did (Tt. 2015. evidence Even enrichment, month as rent finds fact that the the the However, result the sufficient Song, 138 that the Plaintiff Space for continued In fact, October from notice that payment testified that the September through or communication was . as Gilgurd, accept to Martinelli 1, 2012 stated although Further, Plaintiff No other 9-10) the proof of the those other properties that tenants these reasonable 1074, of than 1075, the value 30, offered as meruit or other bemg an obligation agreements services 916 915, 23 the per school space not rendered. [2"d Dept, school). the and ; Geraldi in by the who the (karate See Michaels 2016] from One comparable was deli/grocery, space. to maintain/manage are month Zawgari and that Court presented in type warehouse a commercial Moreover, evidence different as a bare claims Mohammed a karate significantly rented of the and per paid Plaintiff's $6,000.00 The Lubitsch tenants other of the that Premises. for quantum rendered." services month per what aspect evidence Myron not lease 28 N.Y.S.3d the at the are indicated other of $2,000 were and that Space testimony as they to satisfy for claim regarding sufficient Leasehold brief a viable witnesses value to provide (deli/grocery) finds insufficient more of these maintained had paid they Court A.D.3d month "reasonable failed in as much space neither the never Martinelli protested. thereafter. of Plaintiff's was of to the respectively. Moreover, Lines has limited that commercial 32, Premises, value . acknowledged Leasehold per testimony Plaintiff was a period, Gilgurd, by Pg. element a reaschable Plaintiff Gilgurd $6,000.00. Plaintiff. at the upon that for $2,000.00 pay assuming unjust is based represented in fact the rent to be raised would states to pay 12/14/2017, by rent Martinelli failed herein, the that a being Premises. therefore v. Byung v. Melamid, As are not Keun 212 a [* 24] A.D.2d 575, that assuming the alleged) the provide sufficient N.Y.S.2d Plaintiff Plaintiff could the The Defendants plaintiff herein and Counterclaim for and counterclaims instant In response, frivolous. of counterclaims must his counterclaims was even.given County action at the behest trial "the in the the the against The Defendants Plaintiff be disraissed argues given Boris Kings County that trial during trial of process are and the is devoid rights." legal both for the 130-1.1, is accordingly Defendants' of any of process these instant describe NYCRR action that to support their exercising to 22 abuse and prosecution the Second number index Plaintiff's record of their as part mn†and Brief of LUDMILLA commeñciñg from the 503552/2014, allege for contend "the to Court direction at the purpose Trial had Prosecution Malicious number and pursuant Post Gilgurd of Plaintiff in its that in malicious Defendant the index Defendants the still Counterclaim Second for defendants instant The Defendants under of Law, Memorandum action. plaintiff's litigation to prevent sanctions the Similarly, that a benefit sounding by Kings within Process as a means post under rendered, was Id Counterclaim First Plaintiff Process- of of their action services one the even that held (although a contract proof. Abuse in Geraldi Court However, of the sufficient and RUBINOV." SIMON as seeking of the initiation said the Abuse in their However, the to exact was 503552/2014, for as part on Meruit. value provide The based in Quantum reasonable not 1995]. Dept, recovery Counterclaim commenced RUBINOVA proceeding did allege in retaliation "[t]hat of the First sought recover still Plaintiff Prosecution- Malicious not [2"d 743 742, had evidence that determined 622 576, to support evidence and that no testimony counterclaims." . . Malicious treated regularly as such issued prosecution herein. process, "The and three either civil abuse essential elements or criminal (2) 24 often of the an intent used tort of to interchangeably abuse do harm of process without and will are "(1) excuse or be [* 25] and justification, Tenore [2nd v. Kantrowitz, Dept, 2010], "the more, damages capable of being establish that satisfied 130 inc., been "because and he's saying 32, Lines 2-4) only if (3) provide otherwise or prolong the material and testimony Court with an abuse finding, resolution statements of the parties sufficient cannot proof that the this a matter Court that the the existence instadt that else money." will law; of the Plaintiff v. Hudson One, proceeding of the Defendants was solely his agamst who I don't know, Pg. 2/15/2018, to be frivolous a reasonable it is undertaken (2) a review the During be found by had lawsuit (Tt. or maliciously After fmds [2nd. must prosecution Inc. to 572 571, proceedmg be supported of existing false." are of process Rubinov. somebody or to harass litigation, type a previous that a prior reimburse and the 5000, Plaintiff, to that See parties of the states or reversal of the the I will to a claim 2015]. Dept, account our in law merit modification, factual the from rise conduct subsequent is give or malicious he initiated that 130-1.1(c) without the What N.Y.S.2d 944 847, conduct. a principal my mistake, NYCRR 22 an extension, it's and between credibly $17,000 sorry, very dispute against testified he withdrew I'm Although credibility Gilgurd However, for this Gilgurd it is completely "(1) it asserts Plaintiff Defendant considered of process [2nd 511 509, is no legally not 257 255, [1984]. 1324 N.E.2d 846, N.Y.S.2d 907 557, will sanctionable constituted there matter, action of the 556, objective." a collateral complaint 95 A.D.3d abuse claiming 13 N.Y.S.3d 680, instant Rubinov and and v. Farley, a party above 678, by Muro-Light obtain 469 113, so is not as doing to 76 A.D.3d 63 N.Y.2d summons by commencement Defendant testimony, to delay the action manner P. C., Gratfman, of process, significance, A.D.3d brought argument abused." in a perverted v. Suozzi, a civil abuse elements In the . of both the & Curiano quoting for Of 2012]. Dept, process Goldhamer institution recover of the use (3) injure or another; claims have primarily made failed pretextual, by the to or of process. the Court that did finding find that was on the basis of the 25 of the other existence proceeding of the dispute served itself. to support Gilgurd a and [* 26] Rubinov are intervention becëñe however, lend However, no to conclude case Especially since the Plaintiff evidence presented Defendñts of Process The are m PlaintifFs Plaintiff days of the date the Second Defendant's that the either other matter There instant or to.harass Malicious and Prosecution Court support for in this "undertaken injure or maliciously the motivation. the for to no to damages was matter provided is little It does, possible to Rubinov's was to be entitled is frivolous. claim in relation Court to permit There case. As no or a result, for Counterclaim Second was to delay primarily another." the Decision of the First to Settle of entry. Cause of Action amount and and of Third Second Judgment for $66,000.00 Causes of contract as against of Action Counter Claims on Notice together the is granted Defendants and plus are Plaintiffs interest and costs. are dismissed. are with dismissed. a copy of this dec' on within ENTER: ca J. Landicino J.S.C. the Abuse Court. breach it that. as follows: First damages that that point denied. hereby Plaintiff's to the determined for mean or malicious. litigation, Counterclaim ORDERED It is hereby awarded of the constitutes foregoing was not truthfulness frivolous was Defendants by resolution First does in relation specificity this the That to the deteriorated has relationship to Gilgurd's credibility real Their an option. that prolong . at odds. clearly 30