House 93, LLC v Lipton

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House 93, LLC v Lipton 2021 NY Slip Op 30084(U) January 11, 2021 Supreme Court, New York County Docket Number: 161159/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 01/12/2021 03:01 PM NYSCEF DOC. NO. 242 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES IAS MOTION 59EFM Justice ----------------------------------------------------------------------------X HOUSE 93, LLC, INDEX NO. MOTION DATE Petitioner, MOTION SEQ. NO. 161159/2018 09/18/2020 004 005 -vAMENDED/RESETTLED DECISION + ORDER ON MOTION HEIDI LIPTON, Respondent. ----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,212,213, 214,215,216,231,232,233,234, 235,236,237, 238 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT The following e-filed documents, listed by NYSCEF document number (Motion 005) 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199,200,201,202,203,204,205, 206, 207,208,209, 210,211,217,218, 219,220,221,222, 223,224,225,226, 227, 228,229,230 were read on this motion to/for EXTEND - TIME ORDER Upon the foregoing documents, it is ORDERED that the Order of January 11, 2021 ·resolving motion sequence 004 and motion sequence 005 in this action is VACATED, RESETTLED AND CORRECTED AS PURSUANT TO· CPLR 5019 [see Kiker v Nassau County, 85 NY2d 879 (1995)]; and it is further ORDERED that the motion of petitioner to confirm the Report of Judicial Hearing Officer Alice Schlesinger filed on January 6, 2020 (motion sequence number 004) is GRANTED; and it is further 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI 8. Motion No. 004 005 Page 1of5 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 01/12/2021 03:01 PM INDEX NO. 161159/2018 NYSCEF DOC. NO. 242 RECEIVED NYSCEF: 01/12/2021 ORDERED that the cross motion of respondent to disapprove such Report is DENIED; and it is further ORDERED that that the motion of petitioner to extend the term of the license issued on June 25, 2019 (motion sequence number 005) is DENIED as moot; and it is further ORDERED that the application of petitioner for sanctions against respondent and respondent's cross motion for sanctions against petitioner are DENIED; and it is further matter ORDERED that this having this before on come court on September 18, 2020, on the cross motion of the respondent for an award petitioner Anthony of damages having John been Novello, for alleged represented Esq., and property damage, in connection the respondent and therewith having represented in connection therewith by, Matthew C. Kesten, and, pursuant to CPLR 4317, the by been Esq., the court having on its own motion determined to consider the appointment of a referee to determine as follows, and it appearing to the court that a reference to determine is proper and appropriate pursuant to CPLR 4317 (b), and involves an issue of damages separately triable and not requiring a trial by jury, it is now hereby ORDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designated to determine the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 Page 2 of 5 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 01/12/2021 03:01 PM NYSCEF DOC. NO. 242 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 the issue of the amount of damages, if any, sustained by the Adjacent Property owned by respondent caused by the construction activity of petitioner under the license granted under Real Property Proceedings & Actions Law § 88l on June 25, 2019; and it is further ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR · unless otherwise indicated; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, 646-386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon the calendar of .the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this court at www.nycourts.gov/supctmanh at the "References" link ), assign this matter at the initi appearance to an JHO/Special Referee to determine as specified above; shall available and it is further ORDERED that counsel shall immediately consult one another and counsel for respondent shall, within 15 days from the date of this Order, 9186) or submit to the Special Referee Clerk by fax e-mail "References" information link called an on for Information the court's therein Sheet (accessible website) and that, containing as soon as (212-401at the all the practical thereafter, the Special Referee Clerk shall advise counsel for the 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 Page 3of 5 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 01/12/2021 03:01 PM NYSCEF DOC. NO. 242 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 parties of the date fixed for the appearance of the matter upon the calendar of the Special Referees Part; and it is further ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed with the hearing, on the date fixed by the Special Referee Clerk for the initial appearance in the Special Referees Part, subject only to any adjournment that may be authorized by the Special Referees Part in accordance.with the Rules of that Part; and it is further ORDERED that, JHO/Special Referee except as otherwise directed by the assigned r good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly. DECISION A review of the transcript of the undertaking hearing reveals that the Judicial Hearing Officer did not discount the amount of the undertaking to be posted for attorneys' fees incurred by respondent as the result of the license based upon respondent's failure to reach a compromise. Instead, the Referee made clear that she attributed much of the fees assessed by respondent's prior counsel to legal services that arose only due to respondent's lack of good faith and reasonableness in contesting the petition for a reasonable and minimal trespass 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 Page 4 of 5 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 01/12/2021 03:01 PM NYSCEF DOC. NO. 242 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 upon her property. Thus, this court finds the undertaking in the amount of $18,000 for attorneys' fees is reasonable, especially in light of the evidence that petitioner has already paid to respondent $20,000 in attorneys' fees for legal services incurred by respondent prior to the commencement of the proceeding at bar. This court finds no grounds for awarding petitioner sanctions against respondent, as respondent had every right to defend against petitioner's application for an extension of the term of the license. Likewise, this court finds that sanctions against petitioner are unwarranted, as the work was only completed one month after petitioner filed its motion for an extension. Neither side presents evidence that resolves the question whether the Adjacent Property suf red any damages caused by the construction activities of petitioner under the license. As the issue implicates questions of credibility, it must be resolved at an evidentiary hearing. 1/11/2021 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D OTHER 0 REFERENCE Page Sof 5 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 5 of 5

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