Opinion
No. 159101/2012.
2013-03-8
The BOARD OF MANAGERS OF theSOUTH STAR, Plaintiff, v. Sophie GRISHANOVA, Defendant.
Wolf Haldenstein Adler Freeman & Herz, LLP by Steven Sladkus New York City for Plaintiff's. Peter Mammis, Esq. Astoria, for Defendant's.
Wolf Haldenstein Adler Freeman & Herz, LLP by Steven Sladkus New York City for Plaintiff's. Peter Mammis, Esq. Astoria, for Defendant's.
CAROL ROBINSON EDMEAD, J.
In this action for, inter alia, breach of contract and injunctive relief, the Board of Managers of The South Star (the “Board”), moves to preliminarily enjoin Sophie Grishanova (“defendant”), or any person or entity acting on her behalf or in concert with her, from (a) letting, subletting, or renting out for less than 30 days unit 11A (the “Unit”) in the condominium located at 80 John Street, New York, New York (the “Condominium”); and (b) permitting any visitor to stay in the Unit, regardless of whether such visitor pays for his or her stay, as long as defendant is not using the Unit as her residence.
By separate motion, defendant moves to reargue and/or renew, or vacate and/or modify this Court's decision dated February 7, 2013.
Motion for Preliminary Injunction
Plaintiff asserts that defendant has owned Unit 11A in the Condominium since March 2011, and has been and continues to operate her Unit as a short term rooming house for days or weeks at a time to transients who come and go. The New York State Multiple Dwelling Law (the “Multiple Dwelling Law”) and the Condominium by-laws (the “By–Laws”) prohibit transientoccupancy of the Unit by even non-paying visitors as long as defendant is not using the Unit as her residence, which is the case here.
Unit owners may post instructions for the front desk on a website designed for this purpose (the “Front Desk Instructions”). According to the affidavit of the Board's president Patrick Kennell, dated December 18, 2012 (the “Kennell Affidavit”) these instructions show that since January 31, 2012, defendant asked the Condominium staff to provide access and keys to 48 different visitors (an average of four per month), some with international and out-of-state driver's licenses provided upon their visits, who stayed in her Unit for several days at a time. Defendant also requested that a housekeeper be given access between these visits. All of such activity is observed by the Condominium's front desk staff.
On one occasion in May 2012, while Kevin Osowiecki (a Board member) and Maciej Targowski (Front Desk staff member) were conversing in lobby, one of defendant's “guests” approached the front desk, requesting if she could “get her deposit back” from the front desk staff. Mr. Osowiecki then accessed “craigslist.org” and saw defendant's Unit advertised as a short term rental, along with photographs of her “living room, bedroom, and distinctive red kitchen.” Mr. Osowiecki later confirmed with maintenance staff that the photographs were of the interior of defendant's Unit.
On September 23, 2012, the Board sent a formal notice to all unit owners that the Condominium was investigating the use of the units as “hotel apartments,” that such practice was in violation of the By-laws and New York state law, and that it would issue $1,000 fines and pursue legal remedies for such violations. This was followed by a letter to defendant dated September 28, 2012, emails (October 2012), and a posting on the Unit, demanding that she cease and desist her short term rentals or face a $1,000 fine for each violation.
Thereafter, on October 24, 2012, Mr. Kennell and two other Board members had a telephone conversation with defendant, wherein she stated that the visitors were her friends and family, that the Condominium fees and expenses associated with a legitimate sublease would be too costly, that the Condominium would not want “another short sale,” and that they could not interfere with her “private property” as “this is America, I can do what I want.”
Peter Mammis (defendant's counsel) then contacted Mr. Kennell to address the situation, and stated that he would tell defendant to cease any unlawful use of the Unit, and asked if the Board would waive the fines if she ceased her activity. However, instead of ceasing her activity, defendant's fiancee Harrison Karp
emailed the Board on December 8, 2012, challenging it to bring this action, boasting that he “comes from a long line of lawyers in the NYC area and [ ] have the means and resources to handle this through the proper channels ...,” and threatening to “reach out to [his] friends and family at the DA's office as well as the Ethics Committee ... and turn this into a job for both of you....” In response, Mr. Kennel advised that all future communications were to be with the Board's counsel. Mr. Karp retorted, “Are you f––––king kidding me,” and declared “Game on jacka—.” (See December 8, 2012 emails).
The email is from harrisonkarp@gmail.com, who, according to defendant's opposition, is her fiancee.
Defendant then stopped paying common charges.
In support of preliminary injunctive relief, the Board argues that it is likely to succeed on the merits of their claims. Even if defendant's visitors were not paying customers, their occupancy would still violate the By-laws and Multiple Dwelling Law because defendant has not been residing in her Unit. The two exceptions to the Multiple Dwelling Law permitting occupancy for fewer than 30 consecutive days do not apply since defendant has not used the Unit as her residence for the last year. Further, (1) the occupants are not living “within the household” with a “permanent occupant” ( i.e., defendant), and (2) she is not temporarily absent from the Unit and receives “monetary compensation” for their occupancy. And, the By-laws expressly limit non-owner occupancy of a unit to legitimate family members, guests, and employees and prohibits the accommodation of any “transient occupants.”
Further, the Condominium unit owners will suffer irreparable harm without an injunction. Kennell's Affidavit indicates that the unit owners are gravely concerned about the risk to their safety and security posed by large numbers of strangers passing through the Unit and the Condominium's lobby and hallways on a routine basis, none of whom have undergone a background check. They live in constant fear that they or their children will be the victims of a crime, by those who are not a part of their condominium community and are free to operate outside of the rules and regulations. The New York state legislature considers the practice of furnishing hotel room rentals in a residential building “fundamentally unsafe” and “dangerous” because of the increased risk of fire caused by the presence of transients in such buildings. Moreover, under New York law, the ongoing nuisance and interference with the unit owners' use and enjoyment of their property caused by defendant's illegal rooming house business is sufficient to establish irreparable harm.
Third, the balance of equities overwhelmingly favors the Board. The Board simply requests that defendant discontinue, pendent lite, her use of the Unit which violates the By–Laws and New York law and threatens the unit owners' safety. There is no prejudice to defendant in light of her failure to pay fines, common charges and assessments on the Units while at the same time profiting from her unlawful endeavor.
Also, the apparent granting of the “ultimate relief” is not an obstacle to granting a preliminary injunction under First Department caselaw. Otherwise, preliminary injunctions could never issue in cases in which the sole relief sought is to enjoin a continuing violation of the law or a continuing harm.
In opposition, defendant argues that plaintiff has no likelihood of success on the merits of its Complaint and the equities are in favor of the defendant. Defendant points out that the Front Desk Instructions showed only four entries for persons permitted to Unit 11A for the past two months, consisting of (1) “Konstantin Zaliznyak,” a real estate broker assisting defendant in finding a buyer for the Unit, and who does not reside at the Unit; (2) Mr. Karp; (3) “Katya Zakharova” (defendant's relative) (“Katya”) and “Pavel Nevmerzhitsky” (her relative's significant other) (“Pavel”), who “currently reside” in the Unit; and (4) “Peter Opie” (“Peter”), Katya and Pavel's roommate. A deed dated December 22, 2012 indicates that Katya is part owner of the Unit. Thus, as Katya (part owner of the Unit), Pavel, and Peter currently reside in the Unit, there is no showing that defendant is running a short term rooming business. Plaintiff submits a Residential Unit Deed, dated December 22, 2012 (two weeks after Mr. Karp's responsive email) transferring the Unit from defendant to herself and “Ekaterina Zakharova” so as to show that her relative, Zakharova, is currently part owner of the Unit. Thus, except for the real estate broker, these individuals reside in the Unit, and the By–Laws (§ 6.14.1) state that “[a] residential unit may be occupied by the individual Unit Owner or members of such Unit Owner's family, guests or domestic employees.”
In her affidavit, defendant denies running her Unit as a “short term rooming house.” Defendant states that she owns the Unit with Katya, and that Katya is “currently occupying the Unit along with her boyfriend” Pavel and”their guest” Peter.
Defendant also argues that plaintiff did not cite any instance of any disturbance, or any “ongoing and imminent threat,” resulting from any occupant of Unit 11A. Karp's emails are irrelevant, and the fines allegedly imposed by the Board were conceived to harass the defendant.
Upon plaintiff's order to show cause and based on the above, the Court issued a temporary restraining order, dated December 21, 2013, enjoining defendant from renting out her Unit for less than 30 days and from permitting any visitor to stay in her Unit for more than five days, regardless of whether such visitor pays for his or her stay, as long as she is not using the Unit as her residence, pending the hearing of this motion (the “TRO”).
Approximately three weeks later, on January 11, 2013, plaintiff moved by order to show cause (motion sequence 002) for an order punishing defendant for contempt of Court for violation the TRO, and a hearing on this application was scheduled for January 29, 2013, 11:00 a.m. The Court held oral argument on the application on January 29, and, based on defense counsel's arguments, directed defendant to submit further documentation by 3:00 p.m. later that day. However, because defense counsel had jury selection in Kings County that afternoon, the Court adjourned continued argument to the following day at 10:00 a.m. The Court instructed, however, that in the event defense counsel's Kings County case proceeded to trial, he was to, inter alia, (1) advise this Court later that afternoon, “at the close of business” whether he was to begin trial the next day, and (2) provide the name of the trial judge in order for this Court to confirm.
According to defense counsel, he emailed the Court at 4:47 p.m. that day, advising the Court that he needed the adjournment of the January 30th hearing because the Kings County jury trial was “scheduled” and additionally, to permit him to obtain “a translation of several of the documents” the Court requested.
His email attached defendant's passport, birth certificate and “RPT indicating that the transfer was a gift.”
Defendant later discovered that the translation would take approximately one week.
The Court did not receive this email, however, until January 30th, when it was forwarded to the Court by plaintiff's counsel.
In response, on January 30th at 9:55 a.m., the Court advised defense counsel that his email did not contain the name of the judge as directed, that the Court must confirm that he was “actually on trial, on what case, and before what judge,” and that unless the Court heard from him “before noon,” the Court will advise plaintiff's counsel “to appear this afternoon, and I will be holding your client in contempt for non appearance” (email dated January 30, 2013).
About a half hour later (10:26 a.m.), defense counsel emailed the Court his “actual engagements today,” providing the names of three cases and the courts involved, but did not provide the names of any Judges. Therefore, the Court admonished defense counsel (at 10:30 a.m. via email), that it needed the names of the Judges and the court where he was “actually on trial” and that unless he was on trial, he was required to be before this Court, as “an emergency order to show cause is not actual engagement. On trial is actual engagement.” This was followed by an email by plaintiff's counsel, advising that the “Hepburn matter on which [defense counsel] is supposedly engaged today” is “not scheduled for today, January 30, but rather tomorrow, January 31” with an attachment of an e-courts print-out regarding the Hepburn matter.
The Court advised all parties to appear at 2:30 p.m.
On January 31, 2013, at the time scheduled, William Ritter, Esq. appeared as of counsel for Mr. Mammis, to again request an adjournment.
The Court was not given the name of the Judge assigned to the purported Kings County trial, and defendant herself did not appear. No reason was proffered for her nonappearance. The Court recited the above email exchanges on the record, and found defendant in contempt of court, reasoning (in a decision dated February 7, 2013):
... The video taped footage and screen shots (supplemented by the affidavits) submitted in support of the contempt motion amply support the position that defendant is not using the Unit as her residence, and that visitors were permitted to stay in her Unit for more than five consecutive days....
Any claim that defendant did not violate the TRO is insufficiently supported by the record. Defendant failed to appear on January 30th, as directed, and her counsel's failure to appear [based on his claim of actual engagement] is inexcusable.... By failing to provide this Court with the name of the Judges before whom defense counsel was to appear, defense counsel deprived this Court of the ability to determine, with the other Judges, which matters would take precedents and which were to be adjourned. Not only did defense counsel fail to provide the Court with the names of the Judges, documentation was presented to the Court showing that contrary to Mr. Mammis' contention, the Hepburn matter was not being tried on January 30th. Moreover, Mr. Ritter provided no reason to the Court as to why defendant, herself, did not appear in Court on January 30th; otherwise, “there would be no contempt because we [the Court] would have started” the hearing (Transcript, p. 5).
Additionally, any purported attempt to show that defendant's visitors have an ownership interest in the property is undermined by the fact that (1) the Real Property Transfer form shows defendant's purported transfer of the Unit as a “sale” and (2) the Board has a right of first refusal, under the Condominium By-laws, which defendant allegedly violated by transferring her Unit to another party without first offering it to the Condominium. Defendant failed to present sufficient evidence that she is exempt from the By-laws in this regard, or that the transfer constituted a “gift.”
Further, plaintiff established that defendant's disobedience defeated, impaired, impeded or prejudiced plaintiff's rights. The By-laws clearly prohibit Unit owners from “transient” occupancy of the Unit (see Section 6.14.2), and permit occupancy of the Unit by the Unit's owner or members of such Unit Owner's family, guests or domestic employees, “In order to provide for congenial occupancy of the Property and for the protection of values of the Units.” Defendant's current use of the Unit clearly frustrates the stated purpose of this Condominium community and poses a potential threat to the safety to its occupants. By failing to appear at the hearing on January 30th, plaintiff (and the Court) were unable to explore the purported merits of defendant's claims, which, are in any event, belied by the record thus far.
Therefore, in light of the above, the Court finds defendant in contempt of court for violating this Court's TRO.
The Court also directed a hearing with testimony concerning costs and expenses incurred by plaintiff in preparing and litigating the contempt motion.
(Hereinafter, the “Contempt Order”)(Emphasis added)
Defendant's instant motion ensued.
Defendant's Motion to Renew/Reargue and Vacate/Modify
Defendant argues that the Court (seemingly) defaulted the defendant notwithstanding the fact that she submitted opposition to the contempt order to show cause, and explained ( via counsel's emails) that an adjournment was required due to defense counsel's conflict. Defendant contends that at the time of the return date of the Contempt Order to Show Cause, defense counsel was “actually before Hon. Donald Kurtz, JSC.” Under CPLR § 2005, law office failure constitutes a reasonable excuse for delay or default. Any default was due to the scheduling conflict, and not wilful or pattern of dilatory behavior, and thus, is excusable.
Further, as to defendant's meritorious defense, defendant argues that plaintiff's Contempt application is neither legally sufficient to establish nor properly plead, but an attempt to harass the defendant. The factual affidavits are identical, word for word, raising questions about their reliability. And, the video showing Katya (part owner of the Unit) and her fiancee entering and exiting the Unit was not authenticated and lacks evidentiary weight. Further, plaintiff failed to show or allege how its rights were prejudiced. Finally, plaintiff's unclean hands and bad faith preclude it from obtaining injunctive relief. Defendant placed video cameras outside the Unit facing its door, the only one of its kind in the building, affixed menacing posters on the Unit's door threatening and embarrassing her. Defendant maintains that Mr. Osowiecki is a racist based on racist comments made about other unit owners in the building. Plaintiff caused to be published a derogatory article in the New York Post, adding to plaintiff's harassment campaign against defendant, a Russian. After reading the article, defendant had an acute nervous breakdown, has been unable to sleep, eat or concentrate, was recommended by her friend (who is a doctor) for further treatment of clinical depression, and now suffers back strain necessitating a massage therapist. Defendant's reputation among her colleagues in the financial sector has been negatively impacted, possibly rendering it difficult for her obtain new employment. Therefore, this action should be placed under seal to protect defendant from further embarrassment.
In opposition, plaintiff argues that the reargument motion should be denied as defective because no default occurred; defendant submitted opposition to the contempt application and was represented by counsel at the oral argument and hearing of same. And, the Court's determination was based on a review of the evidence in the record, and was on the merits. Thus, CPLR § 5015 has no application. Further, defendant pointed to no facts or law that the Court overlooked or misapprehended. At the January 29, 2013 oral argument on the contempt application, defense counsel argued that defendant did not violate the TRO because she had “gifted” the Unit to her “relative” and herself as tenants in common. Plaintiff then presented documentation showing that the transfer was actually a “sale” for which defendant was required to offer the Board a right of first refusal. Since defendant failed to offer such right of first refusal, the Board voided the transfer as a nullity. However, the Court gave defense counsel an opportunity to show, that the “relative” was truly related to defendant and to appear in court the next day, with this “relative” for testimony on that issue. Defendant's failure to appear on January 30th merely deprived her the opportunity to provide additional support for her “gift” claim, and did not result in a default.
In any event, as the Court previously indicated, had defendant appeared, the Court would have proceeded on the issues with Mr. Ritter and no contempt would have been issued. Defense counsel did not miss the contempt hearing; rather, he wilfully neglected to appear after falsely claiming that he had jury selection in Kings County. And, the e-court print outs do not show defense counsel as being actively engaged on any of the matters he claimed.
Defendant failed to show any meritorious defense to the contempt motion, and merely repeats the same arguments previously rejected by the Court. No excuse is provided for defendant's nonappearance and no further documentation is provided showing that the transfer was a gift and not a sale.
Plaintiff also argues that the scandalous, prejudicial derogatory remarks about Mr. Osowiecki are irrelevant, and should be stricken from the record. Defendant even voted for Mr. Osowiecki to the Board at the most recent election in June 2012, thereby undermining her claims of “historic antagonism between Russians (like defendant) and Poles.” Defendant's request to seal this record is unsupported and should be rejected. Notably, plaintiff recently filed a lawsuit against the Board members in order to derail plaintiff's case. Discussion Preliminary Injunction
The decision whether to grant a motion for preliminary relief is committed to the sound discretion of the trial court ( see, Doe v. Axelrod, 73 N.Y.2d 748, 750, 532 N.E.2d 1272, 1273, 536 N.Y.S.2d 44, 45 [1988];Jiggetts v. Perales, 202 A.D.2d 341, 342, 609 N.Y.S.2d 222, 223 [1st Dept 1994] ). The test is whether a movant has shown: “(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of the equities tipping in the moving party's favor” (Doe v. Axelrod, supra, 73 N.Y.2d at 750, 532 N.E.2d at 1272, 536 N.Y.S.2d at 45;Housing Works, Inc. v. City of New York, 255 A.D.2d 209, 213, 680 N.Y.S.2d 487, 491 [1st Dept 1998] ). Proof establishing these elements must be by affidavit and other competent proof, with evidentiary detail (Scotto v. Mei, 219 A.D.2d 181, 182, 642 N.Y.S.2d 863, 864 [1st Dept 1996]; Faberge International Inc. v. DiPino, 109 A.D.2d 235, 240, 491 N.Y.S.2d 345, 349 [1st Dept 1985] ).
The Court's preference and inclination was to conduct a hearing with testimony regarding the appropriateness of the requested injunction. However, in light of defendant's previous refusals to appear, and her counsel's declination of the Court's invitation, no hearing ensued.
The elements for a preliminary injunction are sufficiently satisfied by the record.
Here, the record demonstrates that since January 31, 2012, defendant requested that access and keys be provided to at least 30 visitors, who stayed in her Unit for days at a time. Defendant also requested that a housekeeper be given access between these visits. It is undisputed that defendant's Unit was advertised on “craigslist.org” as a short term rental, with photographs of her Unit. It is also undisputed that in May 2012, one of defendant's “guests” requested she could “get her deposit back” from the front desk staff.
Thus, defendant's conclusory denial that she is not using her Unit as a short term rental is insufficient. Defendant does not deny that she requested that keys be provided to at least 30 visitors, who, according to the Court's review, were not identified as either a “friend, “relative,” “real estate broker,” or “family.” And, her claim that four of the alleged visitors consisted of a real estate broker, a purported co-owner, and the co-owner's friends is insufficient, and does not explain the presence of the remaining 30 visitors to her Unit. Defendant does not explain the identities of those whom out-of-state driver's licenses or passports (Denmark, Massachusetts, Australia, Idaho) were provided to the Court. While defendant's affidavit is careful to state that her “relative” and the friends of her relative reside in the Unit, (unlike her affidavit later submitted on reargument) defendant's affidavit does not affirmatively state that she also resides there.
It is also undisputed that New York State Multiple Dwelling Law and the Condominium By-laws prohibit transient occupancy of the Unit by even non-paying visitors as long as defendant is not using the Unit as her residence, and there is no evidence that defendant resided in the Unit during the period at issue.
Therefore, plaintiff established a strong likelihood of success on the merits of its breach of contract and injunctive relief claims.
As to irreparable injury and the balance of the equities, defendant's continued illegal and improper use of the Unit would interfere with the Unit owners' full use and enjoyment of the property. While there are no reported incidents arising from defendant's rental of her Unit thus far, defendant's continued use is in violation of the Condominium's By-laws (and Multiple Dwelling Law). And, Board member Kennell has indicated that these strangers, who have not undergone any background checks but are staying in the Unit in defendant's absence, pose a threat to the condominium community and unit owners' own use and enjoyment of their property. Such violation and resulting concerns are sufficient to establish irreparable injury (Moody v. Filipowski, 146 A.D.2d 675, 537 N.Y.S.2d 185 [2d Dept 1989] ). And, such violation causes the balance of the equities to tip in favor of plaintiff. Defendant has asserted no prejudice in being precluded from operating her Unit as a rental, and has asserted no right to utilize her Unit in the manner established by the record.
Defendant in a startling display of sophistry, states (according to plaintiff), that plaintiff could not interfere with her “private property” as “this is America, I can do what I want” is colorful, but inaccurate; the rights of defendant are not unfettered.
As such, preliminary injunctive relief is granted.
Turning to the branch of defendant's motion to vacate and/or modify pursuant to CPLR § 5015(a),
the Court may vacate an order pursuant to CPLR § 5015 as follows:
Defendant's motion cites to CPLR § 5015(a).
(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
1. excusable default....
To prevail under this statue, defendant must proffer both a reasonable excuse for the default and a meritorious cause of action (Kassiano v. Palm Management Corp., 95 AD3d 541, 944 N.Y.S.2d 76 [1st Dept 2012] citing Brown v. Suggs, 38 AD3d 329, 330, 832 N.Y.S.2d 36 [2007] ). And, “Law office failure may constitute a reasonable excuse for a default” (Goodwin v. New York City Hous. Auth., 78 AD3d 550, 551, 913 N.Y.S.2d 149 [2010] ).
While the Court declined defense counsel's request for an adjournment, the Court did not decide plaintiff's application for a Contempt Order on default. Instead, the Court considered defense counsel's arguments, and when he raised the claim that the transfer was a “gift,” the Court required further documentation on this point given that the submissions were lacking on this issue. Defense counsel's repeated failure to properly establish his actual engagement did not result in a default against defendant. Rather, it deprived him of the opportunity to further supplement his arguments with documentation. Moreover, the Court took into full consideration defendant's opposition papers. The February 7, 2013 decision recited defendant's arguments set forth in her opposition papers and addressed these arguments. Therefore, it cannot be said that the Contempt Order was granted on default, and as such, CPLR § 5015 has no application herein (Ramona Prods v. WBC Prods., 51 A.D.2d 524, 379 N.Y.S.2d 78 [1st Dept 1976] (“Technically, there was no default on the return date of the motion since plaintiff appeared through its lawyer's service and sought, unsuccessfully, to consent to a conditional 30–day order”); Piaker v. Strong, 40 A.D.2d 1057, 338 N.Y.S.2d 978 [3d Dept 1972] (“there was no default on the prior motion. The case was dismissed after appellants appeared and urged the court to excuse their failure to file a complaint”)).
Finally, as to the branch of defendant's motion to renew and/or reargue, a motion for leave to renew pursuant to CPLR 2221 “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” (American Audio Serv. Bur. Inc. v. AT & T Corp., 33 AD3d 473, 476, 823 N.Y.S.2d 25 [1st Dept 2006] ). The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the Court originally ( see discussion in Alpert v. Wolf, 194 Misc.2d at 133, 751 N.Y.S.2d 707;D. Siegel New York Practice § 254 [3rd ed.1999] ). A motion to renew, “is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention” (Beiny v. Wynyard, 132 A.D.2d 190, 522 N.Y.S.2d 511,lv. dismissed71 N.Y.2d 994, 529 N.Y.S.2d 277, 524 N.E.2d 879).
Defendant presents no new no additional material fact that would change this Court's February 7, 2013 decision. The only fact before the Court that is “new” is that defense counsel now claims he was actually appearing before Justice Donald Kurtz, which is insufficient. Defendant offers no reasonable justification for failing to present this fact to the Court when instructed to do so, and therefore, renewal is unwarranted.
As to the branch of defendant's motion to reargue, a motion for leave to reargue under CPLR 2221, “is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision' “(William P. Pahl Equipment Corp. v. Kassis, 182 A.D.2d 22 [1st Dept 1992] lv denied and dismissed80 N.Y.2d 1005, 592 N.Y.S.2d 665 [1992],rearg. denied81 N.Y.2d 782, 594 N.Y.S.2d 714 [1993] ). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided (Pro Brokerage v. Home Ins. Co., 99 A.D.2d 971, 472 N.Y.S.2d 661) or to present arguments different from those originally asserted (Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588;Pahl Equip. Corp. v. Kassis, 182 A.D.2d at 27). On reargument the court's attention must be drawn to any controlling fact or applicable principle of law which was misconstrued or overlooked ( see Macklowe v. Browning School, 80 A.D.2d 790, 437 N.Y.S.2d 11[1st Dept 1981)).
In light of defendant's claim that the Court overlooked and misapprehended the evidence submitted by plaintiff in support of its contempt application ( i.e., the inadmissability of the videotape, the five “word-for-word” affidavits regarding the log book entries of visitors, and the claim that she lives at the Unit), the Court grants reargument. However, upon reargument, the Court adheres to its earlier determination.
Defendant's claim that she did not violate the TRO because she had “gifted” the Unit to her “relative” and herself as tenants in common is not supported by the documentation defendant provided. The RPT of the transfer shows that the transfer was actually a “sale” for which defendant was required to offer the Board a right of first refusal. Defendant does not show that she is exempt from this requirement or complied with this requirement. And, while defendant requests that the Court reconsider its determination, no further documentation is provided showing that the transfer was a gift and not a sale.
As to the authentication of the video, the Board Vice President Osowiecki affidavit was sufficient to authenticate the recordings of the Unit, since he stated that he, a Board member, was aware that the Board was videotaping plaintiff's Unit ( see Muhlhahn v. Goldman, 93 AD3d 418, 939 N.Y.S.2d 420 [1st Dept 2012] ). And, that the affidavits submitted by plaintiff may be identical, “word-for-word” do not render them inadequate as a matter of law.
Notwithstanding the above, as explained by the Court previously, the log book entries showed instances where visitors were staying in defendant's Unit without defendant since the TRO was issued (Decision, p. 14). The affidavits, which are by various members of the concierge desk staff at the Condominium, attest to the authenticity of the log book entries they individually made.
Further, defendant's attacks against Mr. Osowiecki's character are irrelevant to this Court's analysis.
Therefore, upon reargument, the Court adheres to its earlier determination.
And, although not formally made as a cross-motion, defendant's request to seal this proceeding is denied. Under 22 NYCRR Rule 216.1, all documents and records filed with the Court are “court records,” and, presumptively open to the public. Notwithstanding, 22 NYCRR 216.1(1)(a) provides that:
Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard. (Emphasis added)
Thus, to overcome the presumption of openness, defendant bears the burden of demonstrating that good cause exists to seal the court records (22 NYCRR Rule 216.1; see Danco Labs. v. Chemical Works of Gedeon Richter, 274 A.D.2d 1, 8 [1st Dept 2000]; Coopersmith v. Gold, 156 Misc.2d 594, 606 [1992] ). To demonstrate “good cause,” plaintiffs must establish that “compelling circumstances” exist to justify secrecy ( Coopersmith v. Gold, supra; Herald Co. v. Weisenberg, 59 N.Y.2d 378, 384 [1983] ). The Court's task is determining whether sealing is warranted, is to balance the interests of the public as well as of the parties.
Embarrassment, damage to reputation and the general desire for privacy do not constitute good cause to seal court records ( Visentin v. DiNatale, 4 Misc.3d 1018 [Supreme Court, New York County 2004], citing Liapakis v. Sullivan, 290 A.D.2d 393, 394 [1st Dept 2002]; In re Will of Matilda Benkert, 288 A.D.2d 147 [1st Dept 2001]; In re Will of Hofmann, 284 A.D.2d 92, 94 [1st Dept 2001] ).
Conclusion
Based on the foregoing, it is hereby
ORDERED that plaintiff's application for a preliminary injunction is granted; and it is further
ORDERED that defendant Sophie Grishanova, or any person or entity acting on her behalf or in concert with her, is preliminarily enjoined pursuant to CPLR 6301 from (a) letting, subletting, or renting out for less than 30 days unit 11A in the condominium located at 80 John Street, New York, New York; and (b) permitting any visitor to stay in the Unit, regardless of whether such visitor pays for his or her stay, as long as defendant is not using the Unit as her residence; and it is further
ORDERED that defendant's motion to reargue and/or renew, or vacate and/or modify this Court's decision dated February 7, 2013 is denied, except that the Court grants reargument, and upon reargument, the Court adheres to its earlier determination.
This constitutes the decision and order of the Court.