Theroux v Resnicow
Annotate this CaseDecided on November 23, 2021
Supreme Court, New York County
Justin Theroux, Plaintiff,
against
Norman Resnicow, Barbara Resnicow, 71 Washington Place Owners, Inc., and Board of Directors of 71 Washington Place Owners, Inc., Defendants.
Index No. 154642/2017
Pryor Cashman LLP, New York, NY (Eric D. Sherman, Bryan T. Mohler, and Daniel V. Derby of counsel), for plaintiff.
Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow.
Gerald Lebovits, J.
The following e-filed documents, listed by NYSCEF document number (Motion 012) 474, 475, 476, 477, 478, 479, 480, 481, 482, 483, 484, 490, 491, 492, 493, 494, 495, 496, 500, 501, 502, 503 were read on this motion to SUPPLEMENT PLEADINGS.
In this ongoing quarrel between neighbors in a co-op apartment building, plaintiff Justin Theroux seeks leave to supplement his amended complaint under CPLR 3025 (b) to add allegations about the conduct of defendant Norman Resnicow during the pendency of this action. The motion is granted.
CPLR 3025 (b) permits a party, with leave of court, to supplement a pleading "by setting forth additional or subsequent transactions or occurrences"; and it provides that leave to supplement "shall be freely given upon such terms as may be just." The standard for a request to supplement a pleading is the same as for a request to amend: absent surprise, inordinate delay, or prejudice to the opposing party, leave to supplement should be granted "unless the proposed amendment is palpably insufficient or patently devoid of merit." (Wander v St. John's Univ., 163 AD3d 896, 896 [2d Dept 2018] [applying this standard to motion for leave to supplement].)
Resnicow does not contend that Theroux's request for leave to supplement has been [*2]unduly delayed, nor that he would be surprised or prejudiced by the addition of the proposed allegations to Theroux's amended complaint.[FN1] The only question, therefore, is whether the proposed allegations are plainly without merit. Resnicow advances separate arguments why each aspect of the proposed supplemental complaint is clearly meritless. This court finds those arguments unpersuasive.
1. One aspect of the proposed supplemental allegations pertains to Resnicow's initiation of a dispute over the proper location of the boundary line between the parties' respective portions of a shared apartment terrace. (See NYSCEF No. 477 at ¶¶ 157-163 [proposed supplemental allegations].) Resnicow correctly points out that both this court and the Appellate Division, First Department, held that the co-op's offering plan's definition of the boundary line was ambiguous. (See Theroux v Resnicow, 2019 NY Slip Op 31819[U], at *2-*4 [Sup Ct, NY County June 25, 2019], affd as mod 187 AD3d 654, 654-655 [1st Dept 2020].) Therefore, Resnicow argues, the boundary dispute could not have been initiated by him merely as a pretext to harass Theroux. (See NYSCEF No. 490 at 2-3.) But the courts' conclusion that Resnicow identified a genuine ambiguity about the location of the boundary line does not necessarily foreclose Theroux's allegation that Resnicow then chose to pursue a dispute over that ambiguity—a difference of literally 20 inches one way or the other—out of a desire to harass Theroux. And Resnicow has not provided authority for the proposition that the existence of a reasonable basis for a party's legal position forecloses a private nuisance claim for the party's advancing that position out of retaliatory or harassing motives. Absent such authority, Theroux's proposed supplemental allegations on this topic are not plainly without merit.
2. Another aspect of the proposed supplemental allegations against Resnicow arises out of alleged recurring "volcanic and abusive outbursts" by Resnicow toward his wife in their apartment—outbursts allegedly audible to Theroux and other residents in the building. (See NYSCEF No. 477 at ¶¶ 188-193.) Resnicow argues that this court already held that any such outbursts were not actionable, in the course of denying Theroux's motion to hold Resnicow in contempt of court for similar conduct. (See NYSCEF No. 490 at 4-5.) This court disagrees. Read in context, the statements by this court on which Resnicow relies were simply expressing the court's view that Resnicow's alleged conduct did not constitute a contumacious violation of the court's prior orders and did not warrant the contempt sanction that Theroux was seeking. (See NYSCEF No. 373 at Tr. 23-27 [transcript of oral argument and decision delivered on the record].) Those statements did not categorically foreclose the possibility that Resnicow's alleged conduct could be actionable on some other legal theory, such as the private nuisance claim that Theroux seeks leave to add to his complaint here.[FN2]
3. Theroux's proposed additional private-nuisance claim also draws on various alleged acts by Resnicow occurring, in part, after January 1, 2019. Resnicow contends that this court has [*3]previously ruled that occurrences after January 1, 2019, are not relevant to this action. Thus, Resnicow asserts, any acts by him after January 1, 2019, cannot support Theroux's proposed private-nuisance claim. (See NYSCEF No. 490 at 6-9.) Again, Resnicow overreads the statements by this court on which he relies. Those statements did not hold that conduct or occurrences transpiring after January 1, 2019, were necessarily irrelevant to the action or could not form the basis of a claim by Theroux. Instead, this court merely held that particular discovery requests made by Resnicow (which applied, in part, to time periods after January 2019) were overbroad and sought information on irrelevant topics. (See NYSCEF No. 495 at Tr. 30 [transcript of decision delivered on the record].) That holding does not plainly foreclose Theroux from drawing on post-January 2019 occurrences in supplementing his complaint.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that Theroux's motion under CPLR 3025 (b) for leave to supplement his amended complaint is granted; and it is further
ORDERED that Theroux's supplemental complaint is deemed served and filed in the form set forth at NYSCEF No. 478 upon service of a copy of this order with notice of its entry; and it is further
ORDERED that Theroux serve notice of entry on all parties by November 26, 2021; and it is further
ORDERED that defendant Norman Resnicow shall answer the supplemental complaint by December 21, 2021.
Dated: November 23, 2021
Hon. Gerald Lebovits
J.S.C. Footnotes
Footnote 1:The conduct addressed in the proposed allegations has, in one form or another, already been the subject of substantial attention and motion practice between the parties in this action.
Footnote 2:Resnicow's argument that Theroux lacks a legally "cognizable interest in Barbara Resnicow's well-being" (NYSCEF No. 490 at ¶ 13) fails for a similar reason. Theroux is not seeking damages for any injury to Barbara Resnicow, but for injury to Theroux's use and enjoyment of his own apartment resulting from Norman Resnicow's alleged outbursts toward Barbara Resnicow. (See NYSCEF No. 477 at ¶¶ 188-192, 197-200.)
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