Opinion
No. LT–003280–06.
01-22-2016
Sandra LERCARI and Susan Molinelli, Petitioner(s) v. Stephen RIVERS and Barbara Eames, Respondent(s).
Jay A. Marshall, Esq., Garden City, Attorney for Petitioners. Law Office of Mitchell J. Winn, Garden City, Attorney for Respondent Stephen Rivers. Barbara Eames, Respondent.
Jay A. Marshall, Esq., Garden City, Attorney for Petitioners.
Law Office of Mitchell J. Winn, Garden City, Attorney for Respondent Stephen Rivers.
Barbara Eames, Respondent.
SCOTT FAIRGRIEVE, J.
Respondent Stephen Rivers (a/k/a Stephan Rivers hereinafter referred to as “Rivers”) moves to set aside the Judgment, dated April 18, 2007, signed by Hon. Gary Knobel, based upon CPLR 5015(A)(2). Petitioners oppose the motion.
Background
A non-jury trial was held in 2007 before Judge Knobel. Petitioners brought a non-payment proceeding against Respondents to recover rental arrears for the months of December 2005 through September 2006, pursuant to the terms of a written lease concerning the premises located at 855 Brookwold Avenue in Baldwin, New York. Additionally, Petitioners sought to recover $271.88 for an outstanding plumbing bill, and attorney fees as provided for in the lease.
Respondents asserted two (2) counterclaims:
(A) The first counterclaim was that Petitioners violated New York's common law and the warranty of habitability for unsafe and uninhabitable conditions.
(B) Respondents also sought $10,500 in damages for repairs and installations made during the tenancy.
Judge Knobel awarded Petitioners $33,500.00 for rent arrears, late fees and use and occupancy from October 2006 through April 2007.
The award to Petitioners was reduced by a thirty percent (30%) abatement of rent, for breach of the warranty of habitability, or $10,050.00.
The Judgment was further reduced by $2,000 which Respondents had deposited into court. Thus, Judgment was awarded to Petitioners for $21,450.00.
Judge Knobel denied Respondents' second counterclaim, for $10,500, in its entirety:
“The respondents' second counterclaim seeks $10,500.00 in damages, which the respondent, Rivers, alleges he expended during the course of his tenancy for repairs and installations. The respondent claims that he made various major repairs to the premises as a result of the petitioners failure to cure the defects on the premises. He maintains that he had to repair plumbing, unclog pipes, install a railing and hired an electrician to correct electrical connections improperly installed by Mr. Molinelli. However, Mr. Rivers does not attach itemized bills or any proof of payment of any such repairs.
Paragraphs 4 and 20 of the Rider to the Lease, which governs repairs, states, in relevant part:
R 4. No Major repairs or alterations are to be made in the premises without the written consent of the Landlord.
R 20. The Tenants, at his own cost and expense, will make all minor repairs in the premises including the repair of any glass which may be broken during the term of this lease.
With regard to whether the repairs made by Mr. Rivers were minor or major in nature or whether prior authorization was given by the landlord need not be determined by this Court, as respondent has failed to sustain his burden by submitting proper proof of the alleged repairs. Accordingly, the Court declines to award the respondents any sum on the damages claim in the second counterclaim.”
Respondent Rivers moved on October 29, 2015 to set aside the Judgment because he has now obtained invoices from the electrical contractor, Stephen Electric, LLC, who performed work at the rental premises to cure conditions which he claims made the same uninhabitable. Two (2) invoices are submitted for the court's review in the sums of $4,555.31 and $775.00, for a total of $5,330.31.
Respondent Rivers states in his affidavit, sworn to on October 29, 2015, that he lost the invoices received from Stephen Electric. Respondent tried during the trial in 2007 to obtain other copies from the electrical contractor, Clayton Stephens of Stephen, LLC, but he didn't return the calls.
Respondent claims that he only became aware of the Judgment when he tried to obtain a contractor's license in Nassau County in September of 2015. Upon learning of the Judgment, Respondent did the following:
“I recently became aware that the aforesaid Judgment has been entered against me, when last month I sought to obtain a contractor license in Nassau County, and it appeared in a Judgment search conducted by the Department of Consumer Affairs. At that time, I drove to the last known location of Stephen Electric, LLC, at 1075 East 84th Street in Brooklyn, New York, and found that Mr. Stephens was, in fact, still operating at that location, and had copies of his invoices for said work in his computer, which he provided to me. Copies of these invoices, which correctly indicate that they were paid in full, are annexed hereto as Exhibit ‘F’.”
Based upon the locating of the invoices and the electrical contractor, Respondent requests:
“I am advised by my current counsel, Mitchell J. Winn, Esq., that the Court's decision which is the basis for the aforesaid Judgment denied my claim for reimbursement of these expenses, due to the lack of proper evidence thereof. In light of this newly discovered evidence, it is respectfully requested that this Honorable Court vacate the Judgment entered against me, and either grant a new trial, or amend the Judgment to take account of these paid invoices.”
Petitioners oppose the motion on numerous grounds. Petitioners state that the lost invoices “are not the equivalent of newly discovered evidence.” Petitioners point out that Respondent Rivers had the invoices before trial and either didn't tell his trial attorney about the lost invoices or his attorney chose to ignore the issue.
Importantly, Petitioners state that Respondent Rivers fails to show that a subpoena was issued to Stephen Electric to secure a witness and invoices for the trial.
Petitioners attack the nine-year delay by Respondent Rivers in seeking the instant relief. Petitioners claim that Respondent's claimed lack of knowledge about the Judgment is false.
Petitioners submit that the following demonstrates that Respondent Rivers had to have known about the Judgment:
1. A Notice of Appeal was filed on behalf of Respondents by attorney Mark Silverman on April 19, 2007.
2. Respondents made a motion in the Appellate Term via order to show cause to stay the eviction pending the appeal. This motion was denied by the Appellate Term, and notice of entry was served on Mark Silverman.
3. Respondents' attorney Mark Silverman sent the June 13, 2007 letter to Petitioners concerning settlement.
4. Attorney Mitchell Winn (who replaced Mark Silverman as Respondents' counsel) appeared in 2007 at the courthouse pursuant to a subpoena in supplementary proceedings, and gave unsworn testimony.
5. Finally, in October 2015, another attorney, Adam Moser, called on behalf of Respondent Rivers, offering to settle the case initially at $3,000 and then for $5,000; both rejected by Petitioners.
Decision
Is the Respondent Rivers entitled to set aside the Judgment, dated April 18, 2007, for the purpose of a new trial to introduce the two invoices totaling $5,331.31 on his counterclaim?
This court answers the question with a resounding NO.
Respondent Rivers admittedly had the two (2) invoices before trial but lost same. There is no evidence that Respondent used due diligence to obtain the appearance of the electrical contractor with his records by subpoena or otherwise. Instead, Respondent waited nine (9) years before bringing this application. Contrary to his contention, the evidence demonstrates that Respondent surely knew that a Judgment existed well before his claimed discovery of same in September of 2015 when he was trying to obtain a contractor's license from Nassau County. Rather, the facts show that multiple attorneys were involved with Respondent's case; a notice of appeal was filed, a motion for a stay of eviction was made, Respondent's attorney appeared for unsworn testimony in supplementary proceedings, and offers were made to settle the case.
Respondent Rivers is not entitled to a new trial because the evidence demonstrates that he has failed to show that the invoices could not, with reasonable diligence, have been produced at the first trial. No subpoena was ever served upon the electrical contractor nor any affidavit submitted to demonstrate any effort to locate the electrical contractor for trial and to obtain his appearance with records. Respondent Rivers has nobody but himself to blame for his failure to properly try the first case.
The law does not give Respondent a second trial to reverse his failure to properly present his counterclaim in the first trial.
In Collins v. Central Trust Company, 226 A.D. 486, 235 N.Y.S. 511 (4th Dept 1929), the Court set forth the standards to be followed in granting new trials upon claims of newly discovered evidence:
“Motions for a new trial upon the ground of newly-discovered evidence are addressed very largely to the discretion of the court. Nevertheless, the freedom of the court to act according to its own judgment must be exercised within the well-established rules controlling such applications.
Newly-discovered evidence which is offered merely to discredit a witness of the opposite party cannot be made the basis of a new trial. (People v. Becker, 215 N.Y. 126, 159, 160, 109 N.E. 127 ; People v. Eng Hing and Lee Dock, 212 id. 373, 386, 109 N.E. 127 ; Brady v. Industrial Benefit Assn., 29 N.Y.S. 768, 79 Hun, 156 ; Carpenter v. Coe, 67 Barb. 411 ).
A portion of the proposed evidence upon which another trial is asked comes within this criticism, and cannot be considered on this motion.
It is well settled that to entitle a party to a new trial on the ground of newlydiscovered evidence, it must appear that such evidence could not, with reasonable diligence, have been obtained for use on the first trial. ( People v. Prime, 208 App. Div. 445, 448, 203 N.Y.S. 538 ; Grafton v. Ball, 164 id. 70, 203 N.Y.S. 538 ; Hagen v. N.Y.C. & H.R.R.R. Co., 100 id. 218, 203 N.Y.S. 538 ; Bridenbecker v. Bridenbecker, 75 id 6, 203 N.Y.S. 538.; Kring v. N.Y.C. & H.R.R.R. Co., 45 id. 373, 203 N.Y.S. 538 ; Thompson v. Welde, 27 id. 186, 203 N.Y.S. 538 ; Sayer v. King, 21 id. 624, 203 N.Y.S. 538 ; Smith v. Rentz, 25 N.Y.S. 914, 73 Hun, 195 ).
Parties are supposed to prepare their cases for trial. If they fail to do so and are defeated, they are not entitled to another trial. They have no one except themselves to blame for the result. There should be some end to litigation. The Constitution gives to all litigants their day in court, and a fair and impartial trial, but it does not assure them two days in court.
The moving affidavits are absolutely silent as to any efforts which the defendants made to obtain this newly-discovered evidence before the trial. What preparation, if any, was made for the trial does not appear. We are not told whether any inquiries were made in the proper quarter, or whether any diligence was used to discover any evidence favorable to the defendants. As a matter of fact, the defendants swore no witnesses on the trial. Their cross-examination was short and perfunctory. Plaintiff's evidence stood uncontradicted. Apparently, respondents were content to stand on that evidence, and defend upon the theory that the gift was testamentary in character, and, therefore, void.”
In DaSilva v. Savo, 97 A.D.3d 525, 948 N.Y.S.2d 333 (2d Dept 2012), the Court held that the trial court erred in setting aside the decision after a non-jury trial on claims of newly-discovered evidence. The Second Department held that a moving party must show that “it could not have previously discovered the evidence ...” (citations omitted).
As such, the Court ruled that there was no basis to set aside the award of undistributed profits to plaintiffs based upon documents submitted with the motion to set aside the award:
“Here, the Supreme Court erred in granting that branch of the defendants' motion which was to set aside so much of its decision after trial as determined that the plaintiff was entitled to an award of damages in the principal sum of $125,000 for undistributed profits. The defendants failed to show that they could not have previously discovered the documents that were submitted in support of their motion. Further, those documents were incomplete and consisted of hearsay, and thus were not in admissible form. Under these circumstances, the Supreme Court erred in setting aside the $125,000 damages award for undistributed profits based on the documents submitted in support of the defendants' motion (see Stambaugh v. Stambaugh, 226 A.D.2d at 363, 640 N.Y.S.2d 246 ; see also Sofio v. Hughes, 148 A.D.2d at 440–441, 538 N.Y.S.2d 591 ).”
Another case on point is Fischer v. RWSP, 63 A.D.3d 878, 882 N.Y.S.2d 197 (2d Dept 2009), wherein the Court denied the plaintiff's motion to reopen the case because the motion was untimely. The plaintiff gave no explanation for the failure to offer the evidence during trial and the evidence was not newly-discovered. In Mully v. Drayn, 51 A.D.2d 660, 378 N.Y.S.2d 187 (4th Dept 1976), the Court denied the motion to vacate the judgment where the appellant could have served a subpoena to obtain a 1923 state map, a public record, which existed at the time of trial.
In the case at bar, Respondent Rivers knew of the invoices' existence in 2007, but sat on his hands for nine (9) years before making any effort to locate the electrical contractor and his records. This type of severe laches will not be rewarded. Granting the relief requested here would only encourage other litigants to be sloppy, and would cause never ending relitigation of issues that should be resolved during the first trial.
Based upon all of the foregoing, Respondent Rivers' motion to set aside the Judgment is denied.
So Ordered: