69 Columbia St. Realty LLC. v SDS Colcon Owners LLC

[*1] 69 Columbia St. Realty LLC. v SDS Colcon Owners LLC 2018 NY Slip Op 50018(U) Decided on January 10, 2018 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2018
Supreme Court, Kings County

69 Columbia St. Realty LLC, Plaintiff,

against

SDS Colcon Owners LLC, LOUIS V. GRECO and SDS LEONARD LLC, Defendants.



520543/16



Attorney for Plaintiff

Melissa T. Billing, Esq.

250 Park Avenue, 6th Floor

New York, NY 10177

(212) 907-9600

Attorney for Defendants

Jacob E. Amir, Esq.

One North Lexington Avenue, 11th Floor

White Plains, NY 10601

(914) 681-0200
Francois A. Rivera, J.

By order to show cause electronically filed on June 27, 2017 under motion sequence number two, plaintiff 69 Columbia St. Realty LLC. (hereinafter 69 Columbia), seeks an order: (1) restoring the action under the terms of an Access and Indemnity Agreement (hereinafter the Agreement); (2) temporarily, preliminarily and permanently enjoining the defendants from performing any excavation or construction activities at construction project 63-35 Columbia Street, Brooklyn, New York unless and until the defendants complied with the Agreement; and (3) granting 69 Columbia an award of compensatory damages due to the defendants wilful breaches of the Agreement.

Defendants SDS Colcon Owners LLC., Louis V. Greco and SDS Leonard LLC (hereinafter the defendants) have opposed the motion

BACKGROUND

On November 18, 2016, 69 Columbia commenced the instant action by electronically filing a summons and complaint (hereinafter the commencement papers) with the Kings County Clerk's office [FN1] . The complaint contains sixty eight allegations of fact in support of three causes of action for a declaratory judgment, injunctive relief and compensatory damages.

The complaint alleges, among other things, that the defendants are performing excavation, foundation and construction work at their property located at 63-65 Columbia Street, Brooklyn, New York. The defendants property is adjacent to a five-story brick walk-up building located at 69 Columbia Street, Brooklyn, New York that is owned by 69 Columbia. 69 Columbia further alleges that the defendants have failed to properly stabilize, safeguard, protect and monitor the plaintiff's property in accordance with the requirements of the New York City Building Code and applicable laws during their construction project leaving the plaintiff's property in serious risk of structural damage.

There is no indication in the motion papers or in the Kings County Clerk's office records that the defendants have interposed an answer to the complaint.

PROCEDURAL HISTORY

On June 27, 2017, 69 Columbia, electronically filed the instant order to show cause with the Kings County Clerk's office.

On July 14, 2017, the defendants electronically filed opposition to 69 Columbia's instant order to show cause.

On July 20, 2017, 69 Columbia electronically filed a reply to the defendants opposition papers.

On July 21, 2017, after oral argument on the June 27, 2017 order to show cause, the Court issued an order extending on consent the temporary restraining order in effect as of June 27, 2017 to and including August 8, 2017. The Court further ordered that the defendants request for an undertaking , if any, would be addressed at the hearing scheduled on the adjourn date of August 8, 2017.

On August 8, 2017, the parties appeared for oral argument on the instant order to show cause. The parties notified the Court that they had a resolution on the "engineering issues" and would be submitting a proposed order to the Court by August 10, 2017 outlining their resolution [*2]of that branch of the order to show cause seeking injunctive relief. They further agreed that in the meantime, the temporary restraining order would remain in effect until that branch of the order to show cause seeking compensatory damages related to legal and design fees was resolved. They also agreed to a briefing schedule on the issue of fees as follows: 69 Columbia was to submit its affirmation, with invoices for fees, by August 22, 2017; the defendant would submit opposition, if any, by September 5, 2017; and 69 Columbia would submit a reply, if any, by September 12, 2017. The Court issued an order dated August 8, 2017, containing the parties agreement and briefing schedule.

On August 21, 2017, the parties electronically filed a stipulation that the fees application submission schedule set forth in the Court's August 8, 2017 order would be adjourned as follows:

(1) Plaintiff shall e-file its affirmation in support of its fee application, along with invoices for fees, by close of business September 14, 2017.(2) Defendants shall e-file their opposition papers, if any, by the close of business September 29, 2017.(3) Plaintiff may e-file reply papers, if any, by October 13, 2017.(4) An electronic copy of this Stipulation may be filed in lieu of an original.

On August 18, 2017 the parties submitted a consent order and requested that the Court convert it to so-ordered stipulation. The court so-ordered the stipulation.

As a result of foregoing, the parties apprised the Court that they had reached a resolution of that portion of the motion seeking an injunction, the terms for which are memorialized in the short form order dated August 8, 2017 and the Consent Order so-ordered on August 18, 2017. The parties did not, however, reach resolution of that portion of the motion seeking reimbursement of plaintiff's legal and design professional fees which were purportedly incurred as a result of defendants' alleged breaches of the Agreement, among other reasons.

LAW AND APPLICATION

By examining the New York State Court Electronic Fling records on the instant matter the Court reviewed, among other things, the commencement papers in the instant action. The Court discovered that the complaint in the instant action did not contain a copy of the Access and Indemnity Agreement referred to by 69 Columbia. The Court also discovered that on April 6, 2017, the parties filed a stipulation of discontinuance of the instant action. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).

Neither party referred to, or annexed the stipulation of discontinuance filed on April 6, 2017, or apprised the Court of its existence in any of the motion paper submitted on the instant order to show cause.

CPLR 2214(c) provides, in pertinent part:

"Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved ... Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct."

69 Columbia and the defendants failed to advise the Court that they had stipulated to discontinue the instant action back in April of 2017. This stipulation of discontinuance was a document that the parties should have provided to the Court pursuant to CPLR 2214 (c) because it was a document necessary for the consideration of the questions involved in the instant motion.

69 Columbia did indicate in the first branch of the relief requested in the June 27, 2017 order to show cause that it was seeking restoration of the action according to the terms of the Agreement. However, this branch of the motion was not explained in the documents supporting the instant order to show cause. Nor was it addressed on August 8, 2017, the date scheduled for oral argument, because the parties apprised the Court of their resolution of all matters except for the branch seeking compensatory damages.

Pursuant to CPLR 3217 (a) (1), a plaintiff may voluntarily discontinue an action without a court order by serving the parties with a notice of discontinuance "at any time before a responsive pleading is served or, if no responsive pleading is required, within 20 days after service of the pleading asserting the claim and filing the notice with proof of service with the clerk of the court" (CPLR 3217 [a] [1]). CPLR 3217 (a) (2) and (3) provide for discontinuance by stipulation of the parties (U.S. Bank Nat. Ass'n v Cockfield, 143 AD3d 889 [2nd Dept 2016]).

CPLR 3217 (a) (2) provides in pertinent part as follows:

Any party asserting a claim may discontinue it without an order by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action.

There is no dispute that on April 6, 2017, the parties discontinued the instant action pursuant to CPLR 3217 (a) (2). If all the parties stipulate to discontinue, and the stipulation is filed with the clerk with no indication that any nonparty has an interest, the filing of the stipulation presumably discontinues the action and the case is terminated (see Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, by David D. Seigel, CPLR C3217:9 page 742).

"The general rule had been, and perhaps still is, that a plenary action is required in order to vacate a stipulation of discontinuance. See Gardner v Board of Education Central School Dist. No. 1 Towns of Saugerties, et al., 28 AD2d 616 (3rd Dept 1967)" (see Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, by David D. Seigel, CPLR C3217:10 page 743).

Although a trial court has the power "to exercise supervisory control over all phases of pending actions and proceedings" (Cambridge Integrated Services Group, Inc. v. Johnson, 107 AD3d 1588 [4th Dept 2013] citing, Teitelbaum Holdings v. Gold, 48 NY2d 51, 54 [1979]), it lacks jurisdiction to entertain a motion after the action has been "unequivocally terminated ... [by the execution of] an express, unconditional stipulation of discontinuance" (Cambridge Integrated Services Group, Inc. v Johnson, 107 AD3d 1588 [4th Dept 2013] citing, Teitelbaum Holdings v Gold, 48 NY2d 51, 56 [1979]; see also Yonkers Fur Dressing Co. v Royal Ins. Co., 247 NY 435, 444 [1928]).

By the parties stipulation to discontinue the action, filed on April 6, 2017, the instant action was terminated. Any Court orders issued thereafter including the extension of a temporary [*3]restraining order are vacated as nullities. This is without prejudice to the parties right to seek enforcement of the Agreement and the Consent Order so-ordered on August 18, 2017 by the commencement of a separate plenary action.

CONCLUSION

Plaintiff's 69 Columbia St. Realty LLC's instant action is hereby dismissed pursuant to a stipulation of discontinuance filed on April 6, 2017.

Accordingly, 69 Columbia St. Realty LLC. order to show cause for an order restoring the action under the terms of an Access and Indemnity Agreement is denied.

69 Columbia St. Realty LLC. order to show cause for an order temporarily, preliminarily and permanently enjoining the defendants from performing any excavation or construction activities at construction project 63-35 Columbia Street, Brooklyn, New York unless and until the defendants complied with the Agreement is denied.

69 Columbia St. Realty LLC. order to show cause for an order granting 69 Columbia an award of compensatory damages due to the defendants wilful breaches of the Agreement is denied. The denial is without prejudice to the parties right to seek enforcement of the Agreement and the Consent Order so-ordered on August 18, 2017 by the commencement of a separate plenary action.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:The summons and complaint were not annexed to 69 Columbia's instant order to show cause, defendants' opposition papers or 69 Columbia's reply. The Court reviewed the New York State Court Electronic Fling records to examine the commencement papers. The Court may take judicial notice of its own records (see Wachovia Bank, N.A. v Otto N. Williams, 17 Misc 3d 1127[A] [NY Sup 2007] citing Matter of Khatibi v Weill, 8 AD3d 485 [2nd Dept 2004]).