Rego Park Ventures, LLC v Shany

[*1] Rego Park Ventures, LLC v Shany 2023 NY Slip Op 50974(U) Decided on September 15, 2023 Civil Court Of The City Of New York, Queens County Guthrie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2023
Civil Court of the City of New York, Queens County

Rego Park Ventures, LLC, Petitioner,

against

Solomon Shany A/K/A Solomon Shaney,
Tatiana Shany A/K/A Tatiana Shaney, Respondents.



Index No. L&T 78932/18


Nicholas Yokos, Esq.
Kucker Marino Winiarsky & Bittens LLP
New York, NY
Attorneys for petitioner

Xiaowen Liang, Esq.
Queens Legal Services
Jamaica, NY
Attorneys for respondent Solomon Shany

Dr. Rachel Gordon
Guardian ad litem for Solomon Shany


Clinton J. Guthrie, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's motion in limine and respondent Solomon Shany's cross-motion in limine:

Papers Numbered
Notice of Motion & All Documents Annexed 1 (NYSCEF No.65-77)
Notice of Cross-Motion & All Documents Annexed 2 (NYSCEF #78-80)
Reply/Opposition Affirmation 3 (NYSCEF #81)

Upon the foregoing cited papers, the decision and order on petitioner's motion and respondent's cross-motion (consolidated for determination herein) follows.

PROCEDURAL HISTORY

This holdover proceeding was commenced in late 2018. Respondent Solomon Shany, appearing pro se at the time, interposed an answer. A guardian ad litem (GAL) was also appointed for respondent. Following motion practice, Judge Sergio Jimenez, in a Decision/Order dated February 28, 2020, awarded petitioner partial summary judgment and [*2]dismissed respondent's counterclaim based on the breach of a 2017 stipulation in a prior proceeding. Judge Jimenez also denied respondent's motion to dismiss. Subsequently, by Decision & Order dated January 21, 2022, the Appellate Term, Second Department (2nd, 11th & 13th Judicial Districts) affirmed Judge Jimenez's February 28, 2020 Decision/Order, to the extent that it dismissed respondent's counterclaim based on the breach of the 2017 stipulation (see Rego Park Ventures, LLC v. Shany, 74 Misc 3d 127[A], 2022 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

Meanwhile, the proceeding was subject to various stays related to the COVID-19 pandemic. Upon the conclusion of the stays, respondent, represented by counsel, filed a motion to amend his answer and for summary judgment; petitioner cross-moved to strike an amended counterclaim. By Decision/Order dated August 9, 2022, Judge Kimon C. Thermos granted the motion to amend the answer, denied respondent's request for summary judgment, and denied petitioner's cross-motion to strike the amended counterclaim. Thereafter, the proceeding was transferred to this trial Part. Following a conference on June 20, 2023, the proceeding was adjourned in contemplation of petitioner making a motion in limine. Subsequently, petitioner filed a motion in limine and respondent filed a cross-motion for a separate motion in limine. After briefing on the motions, the court heard argument on September 13, 2023 and reserved decision.

PETITIONER'S MOTION

Petitioner moves for a motion in limine to permit evidence of post-predicate notice nuisance-type conduct (subject to proper foundation) to be admissible at trial. The motion is supported by affidavits and various exhibits. Respondent opposes the motion in all respects.

Generally, the purpose of a motion in limine is "to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use." State v. Metz, 241 AD2d 192, 198 [1st Dept 1998]; see also Matter of PCK Dev. Co., LLC v. Assessor of Town of Ulster, 43 AD3d 539, 540 [3d Dept 2007] [Seeking "an evidentiary ruling, in advance of trial, excluding the introduction of anticipated inadmissible evidence [is] a classic motion in limine"]. The exclusionary purpose of a motion in limine is, therefore, fundamental (see Rondout Elec., Inc. v. Dover Union Free Sch. Dist., 304 AD2d 808, 810 [2d Dept 2003] ["[A]ccording to Black's Law Dictionary, a motion in limine is defined as '[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial'"]). Here, petitioner instead seeks an order granting it permission to amplify the evidence that it presents at trial to include alleged post-predicate notice conduct by respondent. In support, petitioner cites to Domen Holding Co. v. Aranovich, 1 NY3d 117, 124 [2003], for the proposition that the court may consider post-notice incidents as evidence of ongoing nuisance activity. Nonetheless, what petitioner is seeking here is effectively an advisory opinion as to the scope of its prima facie case, rather than the clarification or narrowing of some evidentiary issue.

In Aranovich, the issue of post-notice conduct arose in the context of a summary judgment motion. Petitioner's previous summary judgment motion in this proceeding was granted in part by Judge Jimenez, but issues of fact remained as to certain elements of petitioner's prima facie case. Thus, petitioner has not established even its prima facie case upon the original predicate notices at this juncture (see Goodhue Residential Co. v. Lazansky, 1 Misc 3d 907[A], 2003 NY Slip Op 51559[U], *4 [Civ Ct, NY County 2003] ["A proceeding rises or falls on the allegations in a termination notice, not on post-notice conduct."]). Any [*3]determination broadening its case before trial, without amendment of the petition, would be impermissibly advisory in nature (see Matter of B.Z Chiropractic, P.C. v. Allstate Ins. Co., 197 AD3d 144, 154 [2d Dept 2021] ["Courts of New York do not issue advisory opinions our courts instead resolve controverted questions of fact and law affecting parties' present interests"]; see also Cuomo v. Long Is. Lighting Co., 71 NY2d 349, 354 [1988]; In re Workmen's Compensation Fund, 224 NY 13, 16 [1918, Cardozo, J.] ["[The courts] do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function[.]"]). Moreover, to the extent that petitioner seeks a summary judgment-type determination on the continuing nature of the conduct alleged in the predicate notices, a motion in limine is not a proper vehicle for such relief (see Farias-Alvarez v. Interim Healthcare of Greater NY, 166 AD3d 945, 947 [2d Dept 2018]; Rondout Elec., Inc., 304 AD2d at 810-811).

Accordingly, petitioner's motion for a determination in limine is denied without prejudice to any application that petitioner may wish to make at an appropriate juncture at trial.

RESPONDENT'S CROSS-MOTION

Respondent's cross-motion in limine is effectively the mirror image of petitioner's motion. It seeks to limit, before trial, petitioner's ability to introduce any evidence beyond what is squarely related to the acts alleged in the predicate notice. Respondent cites to, inter alia, Goldman v. Flynn, 2015 NY Slip Op 31489[U] [Civ Ct, NY County 2015], for the proposition that new allegations unrelated to the type of conduct alleged in the pleadings can not be used to make out a prima facie case. However, as recognized by the Court of Appeals in Aranovich, post-notice conduct evincing a continuing nuisance may be considered in appropriate circumstances (see Aranovich, 1 NY3d at 124). Certainly, there is a limit to the reliance upon post-notice conduct, particularly when "new allegations unrelated to the type of conduct alleged in the pleadings" are offered to support a petitioner's prima facie case (Goldman, 2015 NY Slip Op 31489[U], *14 [citing Wonforo Assocs. v. Maloof, 2002 NY Slip Op 50316[U] [Civ Ct, NY County 2002]).

Here, petitioner alleges in its notice to cure that respondent's acts set out therein constitute both a substantial breach of respondent's tenancy and a nuisance under the Rent Stabilization Code. Whether petitioner will be able to sustain these allegations at trial remains to be determined. The court has yet to see evidence or hear testimony at trial; therefore, the court considers it premature, at this pretrial stage in the litigation, to summarily foreclose the possibility of petitioner presenting post-notice conduct if it can show a requisite nexus with evidence of the notice's stated allegations, which form the core of its prima facie case (see DLB of NY, LLC v. Billan, 70 Misc 3d 143[A], 2021 NY Slip Op 50158[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Singh v. Ramirez, 20 Misc 3d 142[A], 2008 NY Slip Op 51680[U], *2 [App Term, 2d & 11th Jud Dists 2008] [A petitioner in a summary proceeding is "'bound by the notice served[.]'"] [internal citations omitted]). Therefore, the court denies respondent's cross-motion to the extent that it seeks a determination excluding all post-predicate notice conduct.

Respondent's cross-motion is granted, however, to the extent that it seeks to preclude petitioner from introducing any sealed criminal records at trial, pursuant to Criminal Procedure Law (CPL) § 160.50 (see generally 53rd St. Rest. Corp. v. New York State Liquor Auth., 220 AD2d 588, 588 [2d Dept 1995]). Petitioner concedes in its reply papers that the sealed criminal records are not admissible. Nonetheless, the court notes that witnesses' testimony based on their own independent recollections that may be related to alleged criminal conduct is not [*4]categorically subject to preclusion (see 53rd St. Rest. Corp., 220 AD2d at 588; 1240 Sheva Rlty Assoc., LLC v. Serrano, 2023 NY Slip Op 31022[U], *10 [Civ Ct, Bronx County 2023]).

CONCLUSION

Petitioner's motion and respondent's cross-motion are disposed as stated herein. The proceeding will be restored to the Part O calendar for a conference to select a trial date on September 21, 2023 at 2:15 PM. Virtual appearances are permitted. This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Dated: September 15, 2023
Queens, New York
HON. CLINTON J. GUTHRIE, J.H.C.