Tcharnyi v Mendez

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Tcharnyi v Mendez 2021 NY Slip Op 34061(U) November 12, 2021 Supreme Court, Westchester County Docket Number: Index No. 55599/2021 Judge: Terry Jane Ruderman 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: WESTCHESTER COUNTY CLERK 11/15/2021 04:24 PM NYSCEF DOC. NO. 23 INDEX NO. 55599/2021 RECEIVED NYSCEF: 11/15/2021 ofright appeals as of for appeals time for To right statutory time _commence the statutory To .commence copy serve a copy to serve advised to (CPLR are advised you are 5513[a]), you (CPLR 5513(a]), parties. upon all entry, upon of entry, of all parties. notice of with notice order, with this order, of this YORK NEW YORK STATE OF NEW THE STATE SUPREME COURT OF THE SUPREME COURT .COUNTY OF WESTCHESTER WESTCHESTER .COUNTY --------------------------------------------x --------------------------------~----------~-----------------------------------------------------------------)( TCHARNYI, ILIA TCHARNYI, ORDER DECISION AND ORDER DECISION AND Plaintiff, Plaintiff, Inde)( 5559912021. No. 55599/2021 Index No. No. 2 . Motion' Sequence Motion' Sequence NO.2 -against-againstand MENDEZ, and ZUJEILY CHRISTINA N. MENDEZ, MENDEZ, CHRISTINA ZUJEILY M. MENDEZ, KOPCHO, MICHAEL MICHAEL J. KOPCHO, Defendants. Defendants. --------------------------------------~--------------------------------------)( -------------------------------------- --------------------------------------x RUDERMAN, RUDERMAN, J. Zujeily defendants Zujeily the ivotion by defendants with theJ.Voti6n The connection with considered in connection were considered papers were following papers The following. complaint dismissing the complaint order dismissing Kopcho, for an order Mendez, Michael J. Kopcho, and Michael N. Mendez, and Christina N.Mendez, Mendez, Christina 3211 (a) (7): pursuantto CPLR3211 pursuantto CPLR Numbered Numbered 1 2 3 4 Papers Papers Affirmation Notice Motion, Affirmation of Motion, Notice of Exhibits 1 - 4 Affirmation in Opposition, "Response," Affirmation Opposition, E)(hibits "Response," Affirmation Reply Affirmation Reply Sur-Reply Affidavit! Affidavit 1 Sur-Reply the of the landlord of Tcharnyi is a landlord Ilia Tcharnyi plaintiff Ilia The complaint i11; iIl;this action alleges alleges that that plaintiff this action The complaint rented to was rented S was apartment 11S that apartment York, and that New York, premises Street, in Yonkers, Yonkers, New Alder Street, know as 22 Alder premises know Zujeily M. for Zujeily guarantor for allegedly a guarantor was allegedly defendant,.Zujeily Kopcho was Michael Kopcho defendant Michael Mendez; defendant defendant,. Zujeily M. Mendez; tenants and to other tenants Mendez. statements to other made false statements defend~ts made that defend~ts complaint that the complaint alleged in the Mendez. It is alleged 1 1 submission is this submission basis, this without basis, and without Because permission and without permission permitted without not permitted are not sur-replies are Because sur-replies the assertions in the the unsworn to the swear to relied on only extent that it serves retroactively swear unsworn'assertions to retroactively serves to that it the extent to the only to relied Affirmation .' ' • Opposition. Affirmation in Opposition. ' 1 [* 1] 1 of 5 ~ 'I FILED: WESTCHESTER COUNTY CLERK 11/15/2021 04:24 PM NYSCEF DOC. NO. 23 INDEX NO. 55599/2021 RECEIVED NYSCEF: 11/15/2021 posted signs and pasted rent, and pay rent, to pay not ta tenants nat other tenants the signs advised ather building, advised the building, conditions in the about canditians public abaut the public read, "Stop! which signs public, which an the windaws .of their sa that cauld be seen seen by the public, signs read, "Stap! they could that they apartment so their apartment windows of on Iflaaking Speak ta abaut current current situation!!!" situatian!!!" The complaint's camplaint's causes causes of .of action actian tenants about to tenants rent!!! Speak to rent!!! If looking ta and libel. sound in defamation defamatianand sound to a plaintiffs·act ion amounts contend that plaintiffsactian maving ta dismiss the complaint, camplaint, defendants defendantscantendthat amaunts ta to dismiss In moving to pursuant ta dismissed pursuant must be dismissed which must suit") which strategic public participation participatian (a "SLAPP "SLAPP suit") against public lawsuit against strategic lawsuit ;J complaint the camplaint that the maintain that further maintain They further (a) (7). They Civil ~~ 70-a, CPLR 3211 (a) and CPLR 76-a and 70-a, 76-a Law§§ Rights Law Civil Rights Kopcho. or Michael Kapcha. Mendez .orMichael Christina Mendez fails ta defendants Christina misconduct by defendants specify any miscanduct to specify repeatedly Mendez repeatedly defendant Mendez of defendant In appasitian, experience .of describes his experience plaintiff-landlord describes opposition, plaintiff-Iandlard tenants to making camplaints about abaut water apartment, and c_onvincing convincing other ather tenants her apartment, leaks in her water leaks unfounded complaints making unfaunded Plaintiff mold. Plaintiff toxic maId. leaks stappaying ta falsely camp lain al;,out a1;>autnnon-existent an-existent leaks and and taxic complain to falsely rent,and paying rent"and stop , . / well as a determination emphasizes a lack .of any findings findings in support suppart of .of Mendez's Mendez's claims, claims, as well determinatian by the lack of emphasizes Administration, Rent Administratian, Office of New State Division Divisian of .of Housing Hausing and and Community Cammunity Renewal's Renewal's Office .of Rent York State New Yark "no inter alia, "na of, inter findings .of, and findings inspection and denying upon an inspectian application upan reduction applicatian rent reductian Mendez's rent denying Mendez's defendant that defendant daims that also claims Plaintiff alsa evidence bathroom. Plaintiff arid bathraam. kitchen and the kitchen water" in the cascading_ water" of cascading, evidence .of over threwgarbage walls; threW backstairs walls; Mendez "vandalized backstairs garbage all aver formed "vandalized coalition she farmed tenant caalitian the tenant Mendez and the they building for listed the building when· he listed that when' and that the backyard; and broke far sale, they equipment," and household equipment," broke hausehald backyard; and to made false vandalized Crazy Glue, Glue, and made false' accusations accusatians ta with Crazy locks with ruined the lacks units and ruined vacant units vandalized vacant reasonable offers. possibility of praspective .of the building sabatage the passibility .of any reasanable .offers. to sabotage building ta buyers of prospective buyers ,, Discussian Discussion defendants in for defendants protection far ''''Civil Rights Law§ Law ~ 76-a 76-a was was enacted enacted to ta pravide special pratection provide special '"'Civil Rights deterring participation by deterring and participatian petition and actians of public petitian rights .ofpublic t_heir rights of their exercise .of the exercise from the arising fram actions arising 928-929 [2d 926, 928-929 AD3d 926, LLC, 131 AD3d SLAPP actians" (International l Shoppes, the Airport, LLC, At theAirport, Shoppes, Inc. v At actions" (Internationa SLAPP 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2021 04:24 PM NYSCEF DOC. NO. 23 INDEX NO. 55599/2021 '4 RECEIVED NYSCEF: 11/15/2021 applies to 10, 2020, applies November 10,2020, effective November Dept amended effective 76-a, as amended Law§S 76-a, Rights Law Civil Rights 2015]). Civil Dept 2015]); "( 1) any based on "(1) "action(s] involving public defined as legal legal claims claims based participation," defined petition and participation," public petition [s] involving "action public of public issue of with an issue connection with forum in connection communication public forum public or a public the public open to the place open communication in a.a place right of constitutional right interest; furtherance of of the exercise exercise of of the constitutional of conduct in furtherance lawful conduct other lawful interest; or (2) any other furtherance of speech in connection connection with issue of of public interest, or in furtherance of the exercise exercise of of the public interest, with an issue free speech subject broadly, as "any interest" broadly, public interest" of public issue of constitutional "an issue "any subject defines "an petition." It defines of petition." right of constitutional right that communication that the communication that the Defendants argue other (s 76-a 76-a 1] [d]). (d]). Defendants argue that matter"(§ private matter" purely private than a purely other than dispute, landlord-tenant dispute, with a landlord-tenant connection with posted in connection was posted plaintiff complains of of in this action, which which was this action, plaintiff complains legitimate of legitimate would be of wrongdoing would landlord wrongdoing of landlord is not "purely private" allegations of since allegations matter, since private" matter, not a "purely renter. interest potential renter. interest to a potential within the falls within that falls complaint that judge a complaint Section which to judge standards by which heightens the standards 76-a heightens Section 76-a if recovered if oply be recovered may only action, "damages such an action, statute's "damages may that in such specifying that parameters, by specifying broad parameters, statute's broad have established the plaintiff, addition to all other other necessary elements, shall shall have established by clear clear and and necessary elements, plaintiff, in addition with made with was made action was the action rise to the gives rise convincing which gives communication which any communication that any evidence that convincing evidence falsity truth or falsity where the truth was false, where whether it was knowledge of whether disregard of reckless disregard with reckless falsity or with of its falsity knowledge of Law §S 76-a Rights Law of such such communication communication is material cause of of action action at issue" issue" (Civil (Civil Rights 76-a [2]). material to the cause of motion the motion responding to the party responding applies, "the law applies, Additionally, "the party anti-SLAPP law the anti-SLAPP which the action to which Additionally, in an action (CPLR 3211 [g]). law" (CPLR basis in law" [must] demonstrate[] substantial basis action has a substantial of action cause of the cause that the demonstrate[] that [must] treated as being treated this action makes the case While affirmation of of defendants' defendants' attorney attorney makes case for this action being While the affirmation public, complaints public, their complaints making their tenants are making that tenants a SLAPP unhappy that landlord unhappy brought by a landlord suit brought SLAPP suit ongoing repeated and making repeated tenant making plaintiff entirely different and.ongoing portrays a tenant picture. He portrays different picture. paints an entirely plaintiff paints false claims claims regarding condition of of her affirmatively causing causing damage, damage, premises, and affirmatively rented premises, her rented regarding the condition while rent while pay rent obligation to pay the obligation avoiding the while thereby avoiding join her, thereby tenants to join other tenants convincing other while convincing 3 [* 3] 3 of 5 ,,/ ~ FILED: WESTCHESTER COUNTY CLERK 11/15/2021 04:24 PM NYSCEF DOC. NO. 23 INDEX NO. 55599/2021 RECEIVED NYSCEF: 11/15/2021 their cash settlement eventually convincing convincing the extortionate cash settlement in exchange exchange for their pay an extortionate landlord to pay the landlord eventually support in the vacating some support claims find some plaintiffs claims contentions, plaintiffs defendants' contentions, Unlike defendants' premises. Unlike the premises. vacating the evidentiary materials materials submitted submitted as exhibits exhibits to his opposition opposition papers. papers. evidentiary SLAPP suits While some some actions actions can clearly clearly be determined, determined, from their essential nature, suits nature, to be SLAPP their essential While Hous.J Sustainable Hous.] for Sustainable [People United United/or Buffalo [People PUSH Buffalo Distrib. Corp. v PUSH Fuel Gas Distrib. National Fuel (see e.g. National [4th Dept submissions call defendants' doubt defendants' into doubt call into plaintiffs submissions here, plaintiffs 2013]), here, Dept 2013]), AD3d 1307 [4th 104 AD3d Shoppes v characterization, International Shoppes juncture (see e.g. International this juncture determination at this such a determination precluding such characterization, precluding tenant group brought in order At AD3d at 928). 928). Rather Rather than than a lawsuit lawsuit brought order to cow cow a tenant group that that Airport, 131 AD3d At the Airport, action by an valid action basis for a valid is expressinglegitimate expre,ssinglegitimate concerns, concerns, plaintiffs submissions describe describe a basis plaintiffs submissions individual owner, for damages damages and injunctive injunctive relief, falsehoods and malicious falsehoods based on malicious relief, based building owner, individual building Mendez. defendant Mendez. targeted sabotage orchestrated personally, by defendant plaintiff personally, against plaintiff orchestrated against targeted sabotage plaintiff has event, dismissal dismissal is not warranted because because plaintiff has provided provided a sufficiently sufficiently clear clear not warranted In any event, communication was convincing evidentiary evidentiary basis supporting a finding finding that complained-of communication was that the complained-of basis supporting and convincing false" (see Civil was false" whether it was made of its falsity disregard of of whether Civil reckless disregard with reckless falsity or with knowledge of with knowledge made with law and fact basis in law have a substantial Rights 76-a [2]), and that of action action have substantial basis causes of plaintiffs causes that plaintiffs Law§S 76-a Rights Law AD3d at 1309). Buffalo, 104 AD3d PUSH Buffalo, Distrib. v PUSH Fuel Gas Distrib. National Fuel generally National see generally CPLR 3211 [g]; see (see CPLR This Court rejects defendants' defendants' argument argument that that the the content content of of the tenants' tenants' signs signs is not defamatory defamatory as a Court rejects This has the sign posted the prepared and who prepared person who matter of law; a reasonable could infer infer that that the person and posted sign has reader could reasonable reader matter of knowledge of facts, not disclosed to the audience, audience, which support the inference conditions in the that conditions inference that which support not disclosed knowledge of building Gross v New York Times Co., 82 NY2d 153-154 NY2d 146, 153-154 New York rights (see Gross tenants' rights the tenants' violate the building violate water that water others that Assertions to others [1993], citing [1986]). Assertions 290 [1986]). 283, 290 NY2d 283, Alphonse, 68 NY2d Steinhilber v Alphonse, citing Steinhilber [1993), not was cascading cascading into her and that there was toxic mold mold in the apartment, apartment, are not was toxic that there apartment, and her apartment, was injury expressions of of opinion, opinion, but statements of of fact, and if if they entirely unfounded and caused caused injury unfounded and they are entirely but statements expressions 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2021 04:24 PM NYSCEF DOC. NO. 23 INDEX NO. 55599/2021 RECEIVED NYSCEF: 11/15/2021 they may may be actionable. actionable. to plaintiff, plaintiff, they Finally, since since the complaint complaint employs employs the plural allegation that that "defendants" "defendants" made made the Finally, plural in its allegation subject verbal verbal and/or and/or written written false statements, statements, the failure failure to name name each each individual individual defendant defendant in these these subject allegations does does not itself present grounds to dismiss dismiss the complaint complaint as against against any of of the allegations not in itself present grounds defendants. defendants. Accordingly, it is hereby hereby Accordingly, ORDERED that that defendants' defendants' motion motion for an order order dismissing dismissing the complaint complaint is denied, denied, and it itisis ORDERED further further ORDERED that directed to appear appear in the Compliance Compliance Conference Conference Part Part on a ORDERED that the parties parties are directed date and in a manner manner of of which which they they will be notified notified by that that Part. date This constitutes constitutes the Decision Decision and and Order Order of of the Court. Court. This Dated: New York Dated: White White Plains, Plains, New York November November 1<.. I<.. ,,2021 2021 ~~) ~~) HON ·..Y HDN . JANE RUDERMAN, RUDERMAN, J.S.C. J.S.C. Y JANE 5 [* 5] 5 of 5 ;'

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