Ismael Realty Corp. v Zervos

[*1] Ismael Realty Corp. v Zervos 2020 NY Slip Op 50060(U) Decided on January 22, 2020 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2020
Supreme Court, Queens County

Ismael Realty Corp., Petitioner,

against

Helen V. Zervos, Respondent.



706818/2019
Salvatore J. Modica, J.

Papers Numbered NYSCEF Doc. Nos. 2-139

This is a special proceeding, filed under Index Number 706818/2019 (Sequence Number 1), seeking relief pursuant to RPAPL § 881. In this action, the petitioner, Ismael Realty Corp. ["Ismael"], seeks to obtain a license or permission to enter upon the adjoining property, located at 25-42A 36th Street, Astoria, New York, and owned by the respondent, Helen Zervos ["Mrs. Zervos"]. [FN1] The petitioner seeks access to the respondent's property in furtherance of a construction project it has undertaken on its property located at 25-40 36th Street, Astoria, New York.

In addition, the respondent filed a motion under Sequence Number 4 to amend a prior order of this Court, dated November 18, 2019, and entered November 20, 2019, under Sequence Number 3. Thereafter, the petitioner filed a motion under Sequence Number 5 to hold the respondent in contempt of court for violating that previous order. As explained in this decision and order, the Court, [*2]in the exercise of its discretion, declines to address the motions filed under Sequence Numbers 4 and 5. These motions are respectfully referred to the Judge who is reassigned these matters.

The respondent, who contends that she acquired ownership rights to a strip of land that lies between the two properties under the claim of adverse possession, filed a separate action on December 1, 2018, under Index Number 718461/2018, for a legal determination of the ownership of that land. The area in dispute consists of a concrete alley that separates the properties. The respondent also seek damages from the petitioner in both actions. As expressly noted at the RPAPL § 881 hearing, this decision and order makes no factual findings or legal conclusions as to the adverse possession claim.

It should also be noted that the attorney who represents the respondent and her husband, Leonidas Louis Zervos, is also their daughter. On November 27, 2019, this Court intended to advise both the respondent and Mr. Zervos of the possible risks posed by such joint legal representation. See People v Gomberg, 38 NY2d 307 (1975). [FN2] Only Mr. Zervos, however, appeared in court on that date. Although Mrs. Zervos had been present at least two times with respect to this matter, she was not in attendance on November 27th. The Court was informed that she was too physically ill to make an appearance. As a result, this Court could only allocute her husband. To that end, this Court made it quite clear to Mr. Zervos that he and his wife have the right to counsel of their own choice. The Court further advised him that it is unwise to have his daughter represent both his wife and him. First, she may be too emotionally connected to this case. Second, she is a witness to the adverse possession claim. The Court made it clear to both the respondent's daughter and her father that she would not be permitted to testify at any phase of these actions. Given the Court's observations of the respondent during the times that she was present in court and her interactions with her daughter, it is quite obvious that she, too, desires to be represented by her daughter.

With respect to the application made under RPAPL § 881, a hearing was held in this case on the dates of November 20, 21, and 27, 2019. Abdul [*3]Navaraez, Kenneth Philogene, and George King testified on behalf of the petitioner. Dennis Zervos, Louis Leonidas Zervos, and Nicholas Politis testified for the respondent. The Court reserved decision in this case. As a threshold matter, the Court credits the testimony given by the respondent's witnesses. To the extent that the testimony of the petitioner's witnesses was inconsistent with that given by the respondent's witnesses, this Court declines to credit such testimony. The Court concludes that the petitioner failed to establish its entitlement under RPAPL § 881. The petition is dismissed with leave to file a new petition in accordance with this decision and order.[FN3]

The facts underlying this litigation are fairly uncomplicated. Ismael purchased two contiguous lots in Astoria, one of which is located at 25-40 36th Street, Astoria, New York. The two lots were bought with the intention of erecting a 5 or 6-story residential building. Before construction could begin, it was first necessary to demolish the then-existing structures on these two lots, which were eventually consolidated into one deed. The merged properties lie immediately adjacent to the Zervos's property, which consists of a 3-family home, with multiple tenants. The Zervos property also contains a gated 15-foot long driveway, located in the front of the house; the driveway is about 10 feet across; it leads to an attached garage. A front yard, with approximately the same dimensions as the driveway, is situated to the right of the driveway. According to Mr. Zervos, there was, initially, no animosity between the two sets of property owners with respect to the construction project. In fact, Mr. Zervos testified that, in February, 2018, he accommodated the petitioner by giving them access to his property to facilitate demolition.

Any civility between the parties, however, completely eroded at some point after the commencement of demolition. At that time, the petitioner erected a fence on or near the property line. The fence, however, was removed at some time thereafter because of an apparent change to the building plans by the petitioner. Given that there was now no fence dividing the properties, Mr. Zervos and his son, Dennis, erected a metal fence along what they believed to be the property line. On October 24, 2018, the fence was torn down by either Mr. Navaraez or individuals employed by him. As the fence was being removed, Mr. Zervos, who was 89 years old, stood on the lower part of this structure to see how the construction was proceeding. As he stood on the fence, one of the [*4]petitioner's workers shook the fence with such force that Mr. Zervos fell down, injuring himself.

It is unnecessary to make a finding whether or not this act was intentional. It is sufficient merely to note that this event marked the beginning of what appears to be unresolvable hostility between the parties. Squandering any opportunity to attempt to settle this case, the petitioner, instead, inexplicably escalated tensions between the parties by entering the respondent's property several times thereafter and excavating or digging under the concrete steps that are attached to the rear of the respondent's house, the concrete alley, as well as the concrete slab in her driveway and front yard. As a result of this conduct, the walkway and concrete steps essentially buckled, collapsing, after even further excavation, by February, 2019. Both the driveway and the concrete front yard are also in danger of collapsing. As a result of the actions by the petitioner's employees, the Department of Buildings, in October, 2018, issued a vacate order with respect to the respondent's steps and the alleyway.[FN4]

In January 2019, the Department of Buildings issued a "stop-work order." The decision was, for unknown reasons, rescinded on July 26, 2019, by a newly appointed Commissioner of the Department of Buildings. On August 6, 2019, this Court issued a temporary restraining order, directing that all construction work by the petitioner cease. In November, 2019, the Department of Buildings, once again, issued a "stop-work order."

Those are the essential facts of this case. In the face of this compelling evidence, Mr. Navaraez, one of the owners of Ismael, fails to understand why the respondent and her family harbor such distrust toward the petitioner and his employees. The attempt at the hearing to inject racism into this case (the petitioner and his son are of the Islamic faith) to explain the motivation of the litigation by the Zervos family was simultaneously pathetic and offensive.

By order to show cause, filed on August 6, 2019, the respondent moved for a TRO, staying the instant construction project until Ismael repaired the extensive damage to her property. See Motion Sequence Number 3. After giving both sides an opportunity to be heard, the Court, for reasons stated on the record on August 6th, issued a TRO and directed that a hearing be held pursuant to CPLR 6301 to determine whether or not a preliminary injunction should issue for the [*5]pendency of this proceeding.

Prior to the hearing, this Court, on November 14, 2019, spent a great deal of time on and off the record with the attorneys for both sides in an attempt to resolve the dispute between the parties, relating to the damages the petitioner caused to the respondent's property. The decision and order, dated November 18, 2019, and entered November 20, 2019, however, presupposed that the parties were knowingly and voluntarily entering into a stipulation or agreement. The Court's decision and order was an attempt to so-order that agreement or stipulation. Much to the frustration of this Court, counsel for Mrs. Zervos appeared in court on November 20, 2019, expressing her dissatisfaction with the Court's expedited decision and order of November 18th, contending that it was incomplete. For example, the respondent wanted five days notice before the petitioner came onto her land to effectuate repairs. She also wanted liability coverage in the amount of $2,000,000.00 before any repairs are undertaken. There were other demands, including replacing a hydrangea bush and covering a hole that would exist once the soil underneath it collapsed. In the end, the respondent claims that she would rather spend $21,000.00 of her own money to ensure that the repairs are done correctly, and then be reimbursed.

As noted in this decision, the respondent filed a motion on December 12, 2019 to amend the Court's November 18th order. See Sequence Number 4. In addition, the petitioner, it turn, filed an order to show cause under Motion Sequence Number 5, seeking to hold the respondent, a woman in her late 80s, in contempt of court. With respect to these motions and the RPAPL § 881 application, as disclosed in footnote number 2 of this opinion, this Court is no longer assigned to Supreme Court, Civil Term. Thus, the Court's jurisdictional power to entertain the issues contained in the multiple motions filed by the litigants must be predicated on Section 26(k) of Article 6 of the New York State Constitution, which expressly provides as follows:

While temporarily assigned pursuant to the provisions of this section, any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned. After the expiration of any temporary assignment, as provided in this section, the judge or justice assigned shall have all the powers, duties and jurisdiction of a judge or justice of the court to which he or she was assigned with respect to matters pending before him or her during the term of such temporary assignment.

NY Const. art. 6, § 26(k).

In light of this Constitutional provision, this Court retains its status as an Acting Supreme Court Justice for the reasonable period of time needed to render a decision regarding these motions. In that respect, it is quite plain that Section 26(k) of Article 6 of the New York State Constitution was enacted to ensure the judicial independence of a judge temporarily assigned to Supreme Court. This provision clearly provides the jurisdictional predicate for a judge, whose temporary assignment is suddenly changed by the Chief Administrator, to, in the sound exercise of its discretion, continue as an Acting Supreme Justice over matters he/she presided over during any such assignment.[FN5]

Notwithstanding the Court's belief that it would be a far better use of judicial resources to continue to exercise jurisdiction over Sequence Numbers 4 and 5, it is time for this Court to bring its continued jurisdiction in Supreme Court over these matters to an end. Sequence Numbers 4 and 5 are motions and, as such, need not necessarily be decided solely by this Court. By contrast, the RPAPL § 881 matter was not merely a motion, it also involved a hearing, over which this Court presided, and in which there was witness testimony. Under the law, this Court has an obligation to make findings of fact and conclusions of law as to that hearing. Section 26(k) of Article 6 of the New York State Constitution provides the triggering mechanism by which this Court may fulfill that obligation. Accordingly, in the exercise of its discretion, the Court will assert jurisdiction only over the RPAPL § 881 matter. Sequence Numbers 4 and 5 are referred to the Judge who is subsequently assigned these matters.

The Court now addresses the petitioner's application for a license pursuant to RPAPL 881. After giving the matter the due consideration it deserves, the petitioner's application for an order under RPAPL § 881 is denied with leave to renew in accordance with this decision and once the "stop-work order" is lifted by the Department of Buildings and the parties are able to resolve their differences [*6]regarding the damages caused to the Zervos property.

The Court's authority over the instant application is set forth in section 881 of the Real Property Actions and Proceedings Law, which provides as follows:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

RPAPL § 881.

In this case, the hearing testimony and the exhibits contained in the petition establish that the petitioner is making improvements on the instant merged lots by constructing a 5 or 6-story apartment building. In order to continue and complete this project and protect the respondent's home, its occupants, her property, and any visitors thereto from falling construction debris, the petitioner contends that it is necessary to enter the respondent's property and place 10-foot tall sidewalk sheds in her driveway and backyard. As noted, the respondent's driveway is about 15 feet long and 10 feet across. The driveway can accommodate two cars parked parallel to one another. According to Kenneth Philogene, the petitioner's engineer, in order to set up these sheds, it will be necessary to place a series of steel posts up to 8 feet tall and 5 feet apart; the posts will be connected by a 1-inch horizontal steel bar and reinforced at the bottom by a 1-inch thick piece of wood, which is 12 inches long and 6 inches wide. Petitioner's expert further testified that these posts will be placed along the respondent's driveway and run parallel, 6 or 7 feet apart. Although the petitioner, in its moving papers, indicated that the sidewalk sheds would be placed on the respondent's property for 6 months, the hearing evidence established that such sheds would be there for up to 18 months.

In addition, although it was unclear from the hearing evidence how many of these steel posts would have to be placed on the respondent's property, at least 6 [*7]would be placed in the driveway and an unknown number in her backyard. With respect to the driveway, it was quite clear from the hearing evidence that these sheds would pose an undue harship on the respondent, her family, as well as her tenants. As conceded by the petitioner's expert, Mr. Philogene, the protective sheds would render the driveway completely unusable for the period of construction, which, as noted, would be about 18 months.

More troubling is the fact that the driveway leads to the respondent's front door. The placement of these posts would, thus, pose an unnecessary danger to both the respondent and her husband, both of whom are advanced in age, in entering and exiting their home. Although the record seemingly indicated that the front yard would be devoid of such obstructions, this area consists of some grass and, mostly, shrubbery — conditions that would make also make it extremely difficult and dangerous for two elderly people to navigate for any period of time. Finally, as the hearing evidence revealed, this area of Astoria has very limited street parking. The petitioner's planned sidewalk sheds would, essentially, prevent the respondent and her husband from the daily use of their car, their sole method of transportation. Given that one of the respondent's tenants is permitted use of this driveway, it would also prevent this tenant from using it to park his/her car and make it inordinately difficult to find parking in that area.

The sidewalk sheds proposed by the petitioner are not the only means of ensuring that this construction project can proceed safely ahead and provide protection to the respondent's home and property and the people living or visiting therein. Both engineers agreed at the hearing that a cantilever system could be used as a substitute for the sidewalk sheds. A cantilever system attaches to the building under construction. As Mr. Politis testified, supports for a cantilever system can be incorporated into the metal rebar of the building presently under construction. He further testified that once an additional level is added to the petitioner's building, the cantilever design can be constructed. It would facilitate future repairs to the building and obviate the need to place obstructions on the Zervos's property. According to the petitioner's expert, however, a cantilever system is more expensive than the sidewalk sheds currently proposed.

Under RPAPL § 881, if an owner or lessee seeks to make repairs or improvements to real property and such repairs cannot be made without entering the premises of an adjoining owner, who refuses permission to enter to effectuate such repairs, a Court, pursuant to a special proceeding, may issue a license for entry. See RPAPL § 881. As set forth in RPAPL § 881, "[t]he petition and affidavits, if any, shall state the facts making such entry necessary and the date [*8]or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry."

Despite the mandatory language used in the statute, this section, permitting a "court to award a property owner a license to access an adjacent property for improvement or repair of the property...[,]" nevertheless, requires a court to make a discretionary determination. Blumenthal 2019 Practice Commentaries, McKinney's Cons Law of NY, RPAPL § 881; see also Matter of New York Pub. Lib. v Condominium Bd. of the Fifth Ave. Tower, 170 AD3d 544, 545 (1st Dept. 2019). Stated somewhat differently, "[a] proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court." Queens Coll. Special Projects Fund, Inc. v. Newman, 154 AD3d 943, 943—44 (2nd Dept. 2017); see also Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 149 AD3d 518 (1st Dept. 2017); Deutsche Bank Trust v 120 Greenwich Dev. Assoc., 7 Misc 3d 1006[A], 2005 NY Slip Op 50467 [U] [Sup Ct, NY County 2005]). Specifically, the statute requires a court "to balance the interests of the parties and [to] issue a license 'when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his [or her] neighbor if the license is refused.'" Stuck v Hickmott, 158 AD3d 1331, 1332 (4th Dept. 2018), citing Board of Mgrs. of Artisan Lofts Condominium, 114 AD3d 491, 492 (1st Dept. 2014).

As noted by the Second Department, "[t]he factors which the court may consider in determining the petition include the nature and extent of the requested access, the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage or inconvenience resulting from the intrusion." Queens Coll. Special Projects Fund, Inc. v. Newman, supra, 154 AD3d at 943—44.

In this case, the Court has taken into account that the license proposed and requested by the petitioner would render the respondent's driveway unusable for at least 18 months. See eg. Matter of Broadway Enters., Inc. v Lum, 16 AD3d 413 (2nd Dept. 2005). Essentially, the respondent's husband and at least one tenant would be completely unable to park their cars in this driveway. Given that parking is at a premium in this area of Astoria, it would, essentially, deprive them of the use of their vehicles. Equally important, it would make it extremely difficult and unsafe for the respondent, who is in her late 80s, and her husband, who [*9]recently turned 90, to navigate in and out of their house. The Court, therefore, finds that the maze of metal posts proposed by the petitioner presents a clear and present danger to people of such advanced age.

Equally important, the petitioner, by its conduct, has already destroyed one of two important means of ingress and egress to and from the respondent's home. For this Court to approve the petitioner's proposed sidewalk sheds would, in effect, render it totally unsafe for the respondent and her husband to go into and out of their home. In addition, the impact on the tenants, with respect to entering and exiting the respondent's home, is another factor to be considered by this Court. These factors all establish that the Zervoses and their tenants will be greatly and unreasonably inconvenienced by the proposed plan put forth by the petitioner. In sum, it will virtually preclude the Zervoses and their tenants from the ability to live in and enjoy their home. It is, therefore, quite obvious that the inconvenience to the Zervoses and their tenants is not relatively slight.

The severe inconvenience to the respondent, her husband, and any other individuals who live at and visit this location can, however, easily be avoided by the petitioner's use of a cantilever system instead of the proposed sidewalk sheds. As acknowledged by the petitioner's expert, the stumbling block to the petitioner's use of a cantilever system is a question of cost, not availability. The Court notes that the petitioner is investing in a multi-million dollar construction project. It can, thus, presumably, absorb the added cost of a cantilever system. This is especially so given that the petitioner never disclosed during the hearing, in support of its burden of proving a hardship to it if the license is refused, what the added cost of a cantilever system would be. For this reason, the Court finds that the added cost of a cantilever system does not present an undue hardship to the petitioner, especially when compared to the hardships facing the Zervos family if the Court permits the use of sidewalk sheds on its property. Accordingly, the Court concludes that there is an alternative means of performing this work without causing undue hardship to the petitioner.

The Court recognizes the public interest in the completion of the project. By the same token, the Court finds that the license fee offered by the petitioner to the respondent, $250.00 a month, is woefully inadequate financial compensation. Under the circumstances of this case, where the respondent is going to lose the use of her driveway and the ability to go into and out of her home safely, no amount of compensation is, frankly, reasonable. This is especially so where the intrusion can be accomplished by a different type of protection device.

After weighing all the requisites factors required by law, the Court finds [*10]that, on balance, the petitioner has failed to show the reasonableness and necessity of the trespass. See In re Tory Burch LLC v. Moskowitz, 146 AD3d 523 (1st Dept. 2017). Here, it is quite clear that petitioner has failed to establish the reasonableness and necessity of the scaffolding device known as sidewalk sheds, which would need to be attached to the respondent's entire driveway and backyard. Bd. of Managers of Artisan Lofts Condo. v. Moskowitz, supra 114 AD3d at 492.

Finally, even though the respondent appears to be amenable to a cantilever system, to be used so long as it is attached to the petitioner's building, not respondent's, the parties still have to resolve their dispute over the damages the petitioner has already caused to the respondent's property. See eg. Bd. of Managers of Artisan Lofts Condo. v Moskowitz supra, 114 AD3d at 491, 492. Notwithstanding that the petitioner has filed a motion to hold the respondent in contempt for not permitting the petitioner to repair the damages by using its own employees, it may behoove the petitioner simply to allow the respondent to repair the damages and then to compensate her for the reasonable costs of such repairs. Frankly, in light of the November, 2019 "stop-work order," unless and until the issue of damages is resolved, the petitioner may not be able to get its project on course.

For this reason and the reasons set forth in this opinion, the petitioner's application under RPAPL § 881 is denied and the petition dismissed with leave to file a new petition.

Notwithstanding the dismissal, the Court, in the exercise of its discretion, directs the petitioner to pay the costs incurred by the respondent in having to hire the services of her expert, Nicholas Politis, in order to defend herself in the instant case. The respondent must be compensated for such expert fees. Given that the respondent is litigating both the RPAPL § 881 license application and has a lawsuit for adverse possession and the damages to her property, for which the petitioner is strictly liable, the Court, in the exercise of its discretion, declines to impose attorney's fees on this application.

In addition, when the petitioner files a new petition, it must submit plans to the respondent that proposes a type of scaffolding protection other than the sidewalk sheds originally proposed. In that respect, to the extent that the petitioner appeared to adopt the testimony of the respondent's expert at the hearing, this Court declines to issue a license on that basis. The petitioner must provide specific details concerning the alternative protection, the length of disruption to the respondent, and comply with all other requirements mandated by [*11]law. Depending on the protection proposed, the respondent may make a request for a contemporaneous license fee. On the new petition, the respondent may request attorney's fees and such fees that are expended on an engineer, who is hired to review the proposed plans submitted by the petitioner.

In closing, the Court is compelled to make several comments. On October 22, 2019, the petitioner's attorney sent a letter to the Interim Administrative Judge of Queens County Supreme Court, Civil Term, requesting that this Court be removed from this case and another judge assigned. Several accusations were made in that letter, three of which require comment. The first was that this Court improperly had this case transferred to itself by bypassing established protocols providing that where multiple related cases have been assigned to different judges, the judge presiding over the first-filed action is normally assigned all such related cases. In addition, the petitioner also charged that this Court delayed the hearing that it ordered pursuant to CPLR 6301. Finally, the petitioner's attorney claimed that the Court failed to issue an undertaking as required by law. The charges are completely baseless. First, the transfer was done by the Court's then court attorney in coordination with the office of the Interim Administrative Judge. Second, the Judge assigned to the earlier index number indicated his preference that this Court handle both cases.

As to the additional charge of delay, when this Court granted a TRO on August 6, 2019, it adjourned the matter to September 9, 2019. Taking into account summer vacation schedules, the adjournment was more than reasonable. Petitioner's attorney, however, was unavailable on September 9th, and the matter was adjourned to October 21, 2019. Thereafter, prior to October 21st, this Court was sent a non-jury trial that was filed in 2014 (see Index Number 14949/2014). Given that the trial case was 5 years old, the Court gave it priority. Nevertheless, the Court commenced the trial with the intent to schedule the TRO matter around the bench trial. In light of the petitioner's letter, however, the Court declined to go forward with the hearing until the Interim Administrative Judge first had an opportunity to decide whether or not to grant the reassignment request. Once this Court learned that it would be retaining jurisdiction, both sides were contacted and directed to be prepared to go forward on November 13, 2019, for a hearing as to whether or not a preliminary injunction should issue for the pendency of the proceedings. Frankly, any delay in commencing the hearing was through no fault of this Court, and, in fact, was engendered by the petitioner.

The final complaint relates to the petitioner's claim that this Court acted improperly on August 6, 2019 in not ordering an undertaking pursuant to CPLR 6312(b). The claim is also completely baseless. Pursuant to CPLR 6313(c), an [*12]undertaking in connection with the issuance of a TRO is discretionary. Having been made aware of the extensive damage that the petitioner inflicted on the respondent's property, this Court, in the exercise of its discretion, declined to require an undertaking when it issued the TRO. In that regard, it is well-established that an owner or entity performing excavation work is strictly liable for any damages caused to an adjoining lot. See American Security Insurance Company v. Church of God of St. Albans, 38 Misc 3d 274 (Sup. Ct. Queens Co. 2012); see also de Winter, 2013 Practice Commentaries, McKinney's Cons Law of NY, RPAPL § 881. In any event, given that this Court allowed construction to resume in its decision and order, dated November 18, 2019, and entered November 20, 2019, the mandatory requirement for an undertaking, pursuant to CPLR 6312(b), to be imposed in conjunction with the issuance of a preliminary injunction, has been rendered moot.

Notwithstanding the petitioner's letter, the Court emphasizes, as it did on the record prior to commencement of the hearing, and in this decision, that the petitioner's letter has had absolutely no effect on the ability of this Court to be fair and impartial to both sides.

It is hereby:

ORDERED that the motion under Sequence Number 1 for a license to enter onto the respondent's property pursuant to RPAPL § 881 is denied and the petition dismissed, with leave to file a new petition in accordance with this decision and order; and it is further

ORDERED that, as explained in this decision and order, this Court declines to address the petitioner's motion pursuant to Sequence Number 4; and it is further

ORDERED that, as explained in this decision and order, this Court declines to address the respondent's motion pursuant to Sequence Number 5; and it is further

ORDERED that the Clerk of the Court is directed to enter this decision and order as a judgment.

This constitutes the decision and order of this Court.

Dated: January 22, 2020

Salvatore J. Modica

J.S.C.

Footnotes

Footnote 1:Although the name of Leonidas Louis Zervos, who is married to Helen Zervos, appears on the respondent's caption, he no longer owns the property located at 25-42A 36th Street, Astoria, New York. According to the attorney for the respondent, he transferred his interest in the property to his wife at some point in time prior to the filing of these actions.

Footnote 2:The Court recognizes that People v Gomberg is, arguably, inapplicable in a civil proceeding. See In re Daniel C., 99 AD2d 35 (2nd Dept. 1984). Also, as noted in footnote one, Mr. Zervos is not a respondent in this case and does not actually own the property. Nevertheless, as someone who lives on the respondent's property, he has, at the very least, an interest in the outcome of this litigation. Thus, he is, presumably, entitled to hire a lawyer to protect that interest. Thus, out of an abundance of caution, the Court conducted the allocution.

Footnote 3:The Court would note that several weeks after the hearing concluded on November 27, 2019, this Court was transferred out of Queens Supreme Court and assigned to Criminal Court. As explained in this decision, this Court has decided to exercise its jurisdiction in this matter pursuant to Section 26(k) of Article 6 of the New York State Constitution.

Footnote 4:Albeit not entirely clear, there was evidence presented, from which an inference can be drawn, that it may have been Mr. Navaraez who was personally responsible for causing some of the damage to the respondent's property.

Footnote 5:It should be emphasized that the State Constitution never uses the term "Acting Supreme Court Justice" when providing for such temporary assignments. The nomenclature is a creation of the Office of Court Administration. Frankly, during the temporary assignment, "any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned." NY Const. art. 6, § 26(k). In any event, under the law, temporary assignments to Supreme Court "shall be made by the chief administrator of the courts in accordance with standards and administrative policies established pursuant to section twenty-eight of this article." See Morgenthau v. Cooke, 56 NY2d 24, 30 (1982). Although this Court has no desire to challenge the end of its temporary assignment to Supreme Court, an argument could be made that an unexplained decision to terminate a temporary assignment in Supreme Court by the Chief Administrator might very well violate both Sections 26(k) and 28(c) of Article 6 of the New York State Constitution. Of course, if the Chief Judge's plan on court reform is enacted, all such issues relating to "temporary assignments" will, unfortunately, come to an end.