Opinion
No. 602813/07.
11-10-2014
Peter KOSOVSKY, M.D., Plaintiff, v. PARK SOUTH TENANTS CORP., Board of Directors of Park South Tenants Corporation, Rose Associates, Inc., AM & G Waterproofing, LLC and Eliseo Associates, PLLC, Defendants.
Robert S. Bernstein, Esq., New York, Attorney for Plaintiff. Scott E. Miller, Esq., Jones Hirsch Connors Miller & Bull P.C., Board of Directors of Park South Tenants Corporation, and Rose Associates, Inc., New York, Attorneys for Defendants, Park South Corp. David Persky, Esq., Law Offices of Edward Garfinkel, Brooklyn, Attorneys for Defendant, AM & G Waterproofing. Martin A. Schwartzberg, Esq., L'Abbate Balkan Colavita & Contini, LLP, Garden City, Attorneys for Eliseo Associates, PLLC.
Robert S. Bernstein, Esq., New York, Attorney for Plaintiff.
Scott E. Miller, Esq., Jones Hirsch Connors Miller & Bull P.C., Board of Directors of Park South Tenants Corporation, and Rose Associates, Inc., New York, Attorneys for Defendants, Park South Corp.
David Persky, Esq., Law Offices of Edward Garfinkel, Brooklyn, Attorneys for Defendant, AM & G Waterproofing.
Martin A. Schwartzberg, Esq., L'Abbate Balkan Colavita & Contini, LLP, Garden City, Attorneys for Eliseo Associates, PLLC.
Opinion
KATHRYN E. FREED, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
| PAPERS | NUMBERED |
|---|---|
| NOTICE OF MOTION AND AFFIDAVIT ATTACHED | 1, 2(Exs.A–N) |
| MEMORANDUM OF LAW IN SUPPORT | 3 |
| NOTICE OF CROSS MOTION AND AFFIDAVIT ATTACHED | 4, 5(Exs.A–K) |
| PLAINTIFF'S AFFIRMATION IN OPPOSITION | 6.(Ex. A) |
| PLAINTIFF'S MEMO OF LAW IN OPP | 7 |
| PLAINTIFF'S REPLY MEMO OF LAW | 8 |
| PLAINTIFF'S REPLY AFFIRMATION | 9 |
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:
Plaintiff Peter Kosovsky, M.D. moves 1) pursuant to CPLR 3212, for summary judgment on his claim for breach of contract against defendants Park South Tenants Corp., Board of Directors of Park South Tenants Corporation, and Rose Associates (hereinafter collectively “Park South”); 2) pursuant to CPLR 2221(d), for reargument of his prior motion for summary judgment, which was denied by order of this Court dated April 17, 2014; 3) pursuant to CPLR 2221(e), granting plaintiff leave to renew his prior motion for summary judgment; 4) pursuant to CPLR 3025(b) and/or (c), granting him leave to amend his second amended complaint; and 5) for such other and further relief as this Court deems just and proper.
Park South cross-moves for an order, pursuant to CPLR 2221(d) granting “reargument of the opposition to plaintiff's motion for summary judgment” and, upon reargument, denying the motion on the ground that it was untimely. It also seeks an order, pursuant to CPLR 5015, denying this Court's conversion of plaintiff's motion in limine into one for summary judgment and denying plaintiff's in limine motion.
The parties oppose each other's motions. After oral argument, as well as a review of the parties' papers and all applicable statutes and case law, this Court grants plaintiff's motion and denies Park South's cross motion.
Factual And Procedural Background:
This action, which has a long and tortuous procedural history, arises from construction work performed on the balconies and facade of an apartment building located at 200 Central Park South in Manhattan. Park South Tenants Corp. (“Park South”) is the cooperative corporation which owns the premises. The Board of Directors of Park South Tenants Corporation (“the Board”) and Rose Associates, Inc. (“Rose”) operate and manage the premises, respectively. Defendant AM & G Waterproofing LLC (“AM & G”) performed waterproofing and other construction services at the premises and defendant Eliseo Associates PLLC (“Eliseo”) performed supervisory and design services there.
Park South, the Board and Rose shall hereinafter be referred to collectively as “Park South.”
In 2001, plaintiff assumed a leasehold interest to apartment 21D of the premises via a proprietary lease (“the lease”). Paragraph 2 of the lease required Park South to keep the building, “including all of the apartments” at 200 Central Park South, “in good repair.” Paragraph 4 of the lease required Park South to “repair or replace” damage to the premises, “including the walls.” Paragraph 7 of the lease allowed the plaintiff “exclusive use of the terrace or balcony” of his apartment. Paragraph 18(b) of the lease provided, inter alia, that the plaintiff “shall not permit unreasonable cooking or other odors to escape into the building” or interfere with the rights of other lessees by making “unreasonable noise” or causing other annoyances. Paragraph 25 of the lease permitted Park South to enter plaintiff's apartment, “upon notice,” to make necessary repairs. In 2006, the Board decided to replace roof and balcony railings. Additionally, the terrace floors, which had been made of terrazzo, were to be replaced with waterproofed concrete pavers. Plaintiff resided in the apartment through March of 2006, when Park South commenced the renovation project.
The lease was annexed as Exhibit A to the affidavit of plaintiff in support of his underlying motion for summary judgment. Plaintiff's affidavit is included as part of Exhibit B to the affirmation of his attorney, Robert S. Bernstein, Esq., submitted in support of this motion. Exhibit B comprises all of the papers submitted in connection with plaintiff's initial motion. Unless otherwise noted, all references are to the exhibits annexed to Mr. Bernstein's affirmation.
Rose hired AM & G to perform the waterproofing, re-grading and restoration of the balconies and terraces during the renovation. Rose also hired Eliseo to provide architectural and engineering services connected to building “envelope” repairs, including work on the facade and balconies of the building. During the renovation, plaintiff made several complaints to Park South, including that dust had infiltrated his apartment; that a pervasive and offensive odor had permeated his entire apartment due to openings in the building created during the project; and that vibration caused by the loading and unloading of heavy materials, roof removal and jack hammering had caused ceiling damage and cracks in his walls, as well as holes in his bedroom wall and window. Ex. A to Ex. B, at par. 16.In 2006, Park South informed plaintiff that the windows in his apartment had been improperly installed. Plaintiff was advised that the windows had not been properly attached to the structure of the building and that, as a result of this detachment, the apartment could not be properly sealed, thereby allowing the entry of dust and other particles. Park South claims that it asked plaintiff to contact the contractor who installed the windows, who had been hired by the unit's former occupant, to correct this defect, but that he did not do so.
After the exterior brickwork had been completed and the terrazzo flooring was removed from the terraces of the building, the waterproofing process was commenced. This process consisted of applying the substance decothane to the structural concrete exposed by the removal of the terrazzo flooring. At some point subsequent to plaintiff's complaints of a persistent odor, Eliseo went to plaintiff's apartment to investigate and determined that the odor was emanating from water pooling on the balconies. Eliseo determined that to correct this problem, the balconies would have to be re-pitched to allow proper drainage of the stagnant water. Ultimately, this problem was resolved and the use of the decothane was discontinued.
In 2007, plaintiff commenced an action against Park South alleging that, as a result of the aforementioned conditions, he had to move out of his apartment. In his second amended complaint, plaintiff asserted claims for constructive eviction, breach of contract, negligence, and breach of warranty of habitability. Ex. A to Ex. B. In his cause of action for breach of contract, plaintiff alleged that Park South breached the terms of the lease, “including, but not limited to sections 7 and 18(b).” Id., at par. 101 (emphasis added ). Specifically, plaintiff claimed that defendants' work at the premises deprived him of the use of his balcony in violation of paragraph 7 of the lease and permitted noise and dust and debris to infiltrate his apartment in violation of paragraph 18(b) of the lease. Id., at pars. 89–103. The allegations in plaintiff's breach of contract cause of action did not specifically allege damage to plaintiff's bedroom wall or window. Id., at pars. 89–103. Plaintiff did allege, however, “cracked walls, holes through the bedroom wall, and window ...” Id., at par. 16.
In November of 2011, plaintiff made an official complaint about Park South to the New York City Department of Buildings (“DOB”). On November 23, 2011, the DOB issued a “Notice of Violation and Hearing” (“ “NOV”) against Park South Tenants Corp. based on a “failure to maintain.” It also found an existing defect, stating “[b]rick and stone work below interior of window has deteriorated and top of window is leaning outward approximately one inch in apartment 21D.” Ex. C to Ex. B. Park South failed to cure the violation and a hearing was then held before the New York City Environmental Control Board (“ECB”) on January 19, 2012, at which time Park South was found to be in violation of New York City Administrative Code § 28–301.1 and was fined $200.00. Ex. D to Ex. B. On November 13, 2012, this Court ruled that the order of the ECB collaterally estopped Park South from asserting that it “properly maintained a brick and stone wall and the window in [p]laintiff's apartment, or at least brick and stone wall.” Ex. E to Ex. B, at 9. This Court further stated that “the ECB violation stands as a violation and the decision of that Court is now law of the case.” Id.
“Administrative Code § 28–301.1 imposes upon landlords the duty to maintain their buildings in a safe condition in compliance with the building code.” Invesco Advisers, Inc. v. Marsh & McLennan Co., Inc., 92 AD3d 414 (1st Dept 2012).
Notably, although Park South requested an adjournment of proceedings before this Court regarding the admissibility of the NOV at trial so as to allow it to appear for the hearing to contest the same, the decision and order of the ECB specifically states that counsel for Park South, although present at the hearing, stated that he “was not putting forth a defense.” Ex. D to Ex. B.
Also during November of 2011, Eliseo moved to preclude the results of certain testing that had been conducted on the wall of plaintiff's apartment by plaintiff's experts. Plaintiff's experts found, inter alia, that the wall needed to be rebuilt. Eliseo requested the right to perform its own testing, arguing that, for it to determine that the wall required re-building, it would need to do destructive testing. Plaintiff refused Eliseo entrance to his apartment at that time, based on the fact that the notice of trial had already been filed. This Court decided that repair work which was needed to remedy the NOV would afford all parties the opportunity to observe the condition of the wall and directed all parties to be present with their respective experts when the repair work was scheduled to commence. Ex. F to Ex. B, at 5. Nevertheless, on March 14, 2012, without plaintiff's, Eliseo's or AM & G's knowledge, Park South had a locksmith drill through the locks on plaintiff's door and entered his apartment. Id. Park South then conducted repair work without plaintiff's or Eliseo's knowledge or consent, in direct violation of this Court's specific order that all parties were to be present when such work was performed. Id.
Eliseo then moved, and plaintiff cross-moved, for spoliation sanctions against Park South. By order dated January 22, 2013, this Court granted Eliseo's motion to the extent of striking Park South's cross-claims arising out of the quality of Eliseo's work. Id., at 10. This Court also granted plaintiff's motion to the extent of precluding Park South from introducing any evidence or testimony “that either plaintiff or his predecessor in title was responsible for the deterioration of the subject wall.”Id., at 10. This Court also noted that “the dust issue was never fully resolved” because plaintiff allegedly refused to permit entry to anyone to clean the dust and did not clean it himself. Id., at 3.
This matter was on the eve of trial on August 13, 2013, at which time plaintiff moved in limine for a directed verdict on his cause of action for breach of contract, asserting that the ECB's order determining that Park South failed to maintain the wall and window in his apartment was binding on Park South and that this Court's spoliation order prevented it from defending the claim. Ex. G to Ex. B. However, upon withdrawal of the motion in limine, this Court granted plaintiff permission to move for summary judgment and the trial did not proceed. Ex. G to Ex. B, at 10–11.On November 5, 2013, plaintiff moved, pursuant to CPLR 3212, for summary judgment on his breach of contract claim and Park South opposed the motion. Ex. B. By order dated April 17, 2004 (Ex. C), this Court denied the motion on procedural grounds, finding that plaintiff failed to annex all of the pleadings to his motion. This Court also denied the motion on the merits, finding that the ECB's determination that Park South failed to maintain the “brick and stone work below interior of window” (Ex. C to Ex. B) did not entitle plaintiff to summary judgment based on collateral estoppel since plaintiff alleged in his cause of action for breach of contract that defendants' work at the premises deprived him of his use of his balcony in violation of paragraph 7 of the lease and allowed noise and dust and debris to infiltrate his apartment in violation of paragraph 18(b) of the lease. Ex. A to Ex. C, at pars. 89–103. Thus, held this Court, there was no breach of contract arising from those provisions. This Court further determined that testimony by Eliseo and San Inocencio that the window became dislodged due to construction work at the premises was inadmissible since the signed deposition transcripts of those witnesses was not submitted. Finally, this Court determined that, since plaintiff failed to cooperate by allowing workers into his apartment to clean debris, issues of fact existed regarding whether remediation could have cured the damages allegedly caused by the violation of paragraph 18(b) of the lease and whether plaintiff breached the cooperation clause set forth in paragraph 24 of the lease.
Plaintiff now moves, pursuant to CPLR 2221, for renewal and reargument of his summary judgment motion, to amend his complaint, and for summary judgment upon the amended complaint. In support of his motion, plaintiff submits, inter alia, a proposed third amended complaint alleging violations of paragraphs 2, 4 and 7 of the lease. Ex. K, at pars. 88–104. Park South cross-moves to reargue its opposition to the underlying motion and, upon reargument, for denial of plaintiff's motion. The cross motion also seeks an order denying plaintiff's conversion of a motion in limine to one for summary judgment and for a denial of plaintiff's motion in limine.
Positions of the Parties:
Plaintiff argues that he is entitled to renewal of his motion for summary judgment. Specifically, he asserts that he should be permitted to supplement the materials submitted in support of his motion since defendants, by failing to raise the argument that he failed to submit such evidence, deprived him of the opportunity to supplement his submission. He also stresses that, at oral argument of his motion for summary judgment, his attorney specifically incorporated by reference the “entire record”, including motions in limine and exhibits to a prior motion for summary judgment by Eliseo. Ex. F, at 23.
Plaintiff argues that he is entitled to reargument of his motion for summary judgment and that, upon reargument, he is entitled to summary judgment on his breach of contract claim against Park South. In support of this argument, he claims that this Court erred in limiting his breach of contract claim to alleged violations of paragraphs 7 and 18(b) of the lease, since paragraph 101 of the complaint alleges that defendant breached portions of the lease “including, but not limited to” those paragraphs. By so limiting his breach of contract claim, urges plaintiff, this Court excluded allegations arising from paragraphs 2 and 4 of the lease, which addressed Park South's duty to maintain the wall and window in his bedroom.
Further, plaintiff asserts that, contrary to this Court's finding in its April 17, 2014 order that plaintiff waited nearly two years to assert that Park South breached the lease by failing to maintain the wall and/or window, he advised this Court within two weeks of the DOB's NOV that it intended to rely on the violation at trial. Ex. H to Ex. B, at 30.
In addition, plaintiff asserts that he should be entitled to amend his complaint to allege violations of sections 2 and 4 of the lease so that he can establish that Park South breached the lease by failing to maintain the building. Plaintiff stresses that, in December of 2011, Park South admitted that the condition of the wall has been plaintiff's “theory of the case all along” (Ex. H, at 76) and that, in November of 2012, Park South admitted that the violation issued against it by the DOB was “some evidence of negligence and may or may not be a violation or a breach of a contractual obligation.” Ex. E to Ex. B, at 20; Ex. J, at 20.
In opposition to plaintiff's motion, Park South argues that plaintiff failed to establish his entitlement to renewal or reargument of his summary judgment motion. Specifically, it asserts that plaintiff's motion for summary judgment was untimely and that issues of fact exist which warrant the denial of the motion. Park South also maintains that, although plaintiff seeks summary judgment on his breach of contract claim, his claim is actually for negligence, and that plaintiff cannot obtain summary judgment for a breach of lease provisions he did not plead. Relying on 905 5th Assocs., Inc. v. 907 Corp., 47 AD3d 401 (1st Dept 2008) and the “immunity provisions” set forth at paragraph 29(a) of the lease, Park South maintains that it cannot be liable to plaintiff in the absence of a finding that it was negligent.
Next, Park South argues that plaintiff should be barred by laches from amending the complaint, and that it would be prejudiced by an amendment at this time since it is barred by this Court's spoliation decision from asserting affirmative defenses in response thereto. Specifically, it claims that the finding of spoliation was “based on plaintiff's misleading impression that both plaintiff's counsel and plaintiff were unaware and purposefully excluded from the repairs.” Park South's Memo of Law, at 12.
In support of its cross motion, Park South argues that it is entitled to reargument of its opposition to plaintiff's motion because the motion was untimely. Park South also claims that this Court improperly converted plaintiff's motion in limine into one for summary judgment and that the motion in limine should be denied.
In a memorandum of law in opposition to Park South's cross motion, plaintiff argues that its motion for summary judgment was timely. Park South further asserts that its motion for summary judgment was not an improperly converted motion in limine. Rather, it asserts that it withdrew its motion for a directed verdict and filed a separate motion for summary judgment. Ex. G to Ex. B, at 10–11. Even assuming that its motion for summary judgment was untimely, argues plaintiff, it had good cause for bringing the application when it did, since the motion was filed after the ECB issued its order; after the November 13, 2012 ruling by this Court that “Park South is collaterally estopped from introducing any evidence that it properly maintained a brick and stone wall and the window in [p]laintiff's apartment ...” (Ex. E to Ex. B, at 9–10); after the January 22, 2013 order of this Court that Park South was precluded from introducing any testimony that plaintiff or his predecessor in title was responsible for the condition of the wall (Ex. F to Ex. B); and after the August 13, 2013 clarification of the scope of the spoliation order, in which this Court stated that Park South was precluded from introducing evidence of the condition of the wall. Ex. G to Ex. B, at 14.
In a reply memorandum of law in further support of its motion, plaintiff asserts that there was no need for him to assert specific violations of paragraphs 2 and 4 of the lease since Park South was aware from the beginning of this litigation that his breach of contract claim encompassed the condition of the wall and window in his bedroom, since that condition was alleged at paragraph 16 of the second amended complaint, and there would thus be no prejudice if he were he permitted to assert violations of paragraphs 2 and 4 at this time. Plaintiff further asserts that paragraph 91 of the second amended complaint adequately stated a cause of action for breach of contract, alleging that Park South “materially breached the [l]ease” and that paragraph 101 specifically alleged a “breach of contract by materially breaching the lease, including, but not limited to section 7 and 18(b) ...” Ex. A to Ex. B. Plaintiff thus asserts that it is disingenuous for Park South to assert that he is seeking summary judgment on an unpleaded claim.
Further, plaintiff argues that Park South fails to identify any issue which was not addressed during discovery which would result in prejudice if the complaint were amended.He also maintains that Park South's argument that it should not have been precluded from introducing evidence regarding the window and wall is irrelevant to his motion to amend.Plaintiff further asserts that paragraph 29(a) of the lease, entitled “Lessor's Immunities”, does not protect Park South from liability because it does not bar a claim for breach of contract under paragraph 2 or 4 of the lease or a claim arising from a failure to maintain the premises. Finally, plaintiff argues that the business judgment rule does not protect Park South from its breach of contract.
Conclusions of Law:
Renewal
A motion for leave to renew “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.” CPLR 2221(e)(2), (e)(3). “[W]here the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, has been raised sua sponte by the court in its memorandum * * * it [is] error for the court not to consider these additional facts' (Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 866 ).” Bevona v. Superior Maint. Co., 204 A.D.2d 136, 138 (1st Dept 1994) ; see also Toos v. Leggiadro Intl., Inc., 114 AD3d 559 (1st Dept 2014) (IAS Court improvidently exercised its discretion in denying plaintiff's motion to renew in order to present an affidavit correcting a procedural error); S & D Petroleum Co., Inc. v. Tamsett, 144 A.D.2d 849 (3d Dept 1988) (IAS Court did not abuse its discretion in granting renewal where denial of underlying motion was based on procedural defect).
Here, this Court denied plaintiff's motion for summary judgment based, inter alia, on procedural grounds not raised by the parties, i.e., that plaintiff annexed neither executed deposition transcripts nor a copy of Park South's answer to his motion. However, in his affirmation in support of the instant motion, plaintiff's attorney redresses the omission of these documents, stating that the notice of motion of the underlying motion for summary judgment had incorporated by reference all prior pleadings and proceedings in this action which, this Court notes, are voluminous. Further, Park South does not oppose the instant motion based on plaintiff's failure to submit the answer or signed deposition transcripts with its original motion. Therefore, this Court, in its discretion, grants plaintiff's motion to renew and accepts Park South's answer and the executed deposition transcripts as part of plaintiff's submission on his motion for summary judgment. Id., at 138–139 ; see also Mercado v. Ovalle, 110 AD3d 539 (1st Dept 2013) (plaintiff's argument that defendant's motion for summary judgment should be denied due to omission of answer from motion papers was unpreserved and, in any event, defendant explained the absence of the answer and, since plaintiff failed to raise issue of pleadings missing from motion, defendant did not have opportunity to supplement motion papers); Sanacore v. Sanacore, 74 AD3d 1468 (3d Dept 2010) (although a failure to attach pleadings to a motion for summary judgment generally warrants denial of the motion, a dismissal on that ground “should be without prejudice to renewal”).
Reargument
A motion for leave to reargue, pursuant to CPLR 2221(d), “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the proper motion.” Such motion “is addressed to the sound discretion of the court.” William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22 (1st Dept.1992), lv dismissed, 80 N.Y.2d 1005 (1992), rearg. denied 81 N.Y.2d 782 (1993).In N.Y. Prac, § 254, at 449 (5th ed), Professor David Siegel succinctly instructed that a motion to reargue “is based on no new proof; it seeks to convince the court that it was wrong and ought to change its mind.”
This Court, in its discretion, hereby grants reargument of plaintiff's motion for summary judgment. As plaintiff argues, this Court held that plaintiff's breach of contract claim was limited only to violations of paragraphs 7 and 18(b) of the lease, which related to plaintiff's terrace/balcony and odors and noises, respectively. Ex. C, at 9–10. Although plaintiff's breach of contract cause of action specifically alleged violations of only those two paragraphs of the lease (Ex. A to Ex. B), it is important to read the lease “as a whole to ensure that excessive emphasis is not placed upon particular words or phrases” South Rd. Assocs., LLC v. IBM, 4 NY3d 272, 277 (2005), citing Matter of Westmoreland Coal Co. v. Entech, Inc., 100 N.Y.2d 352, 358 (2003). However, in rendering its April 17, 2014 decision, this Court did not read the lease as a whole and overlooked that paragraph 2 of the lease required Park South to “repair all of the [b]uilding, including all of the apartments”, and that paragraph 4 required it to repair, inter alia, walls of the apartments. Ex. A to Kosovsky Aff. Therefore, plaintiff's claim in the second amended complaint that vibration caused by the loading and unloading of heavy materials, roof removal and jack hammering had caused cracks in his walls, as well as holes in his bedroom wall and window (Ex. A to Ex. B, at par. 16), sufficiently alleged a breach of the lease. See Crossways Apartments Corp. v. Amante, 213 AD 430, 435 (1st Dept 1925).
Amendment of the Second Amended Complaint
It is well settled that amendment of a pleading shall be freely granted provided there is no surprise or prejudice to one's adversary. See CPLR 3025(b) ; JPMorgan chase Bank, N.A. v. Low Cost Bearings N.Y. Inc., 107 AD3d 643, 644 (1st Dept 2013) ; Kocourek v. Booz Allen Hamilton Inc., 85 AD3d 502 (1st Dept 2011). Amendment of a pleading should also be denied if it is palpably insufficient or devoid of merit. See JPMorgan chase Bank, N.A. v. Low Cost Bearings N.Y. Inc., supra at 644. Delay, in and of itself, is not a sufficient ground upon which to deny a motion for leave to amend. Id. Prejudice is established where it is shown that a party has “been hindered in the preparation of his case or has been prevented from taking some measure in support of his position.” Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 23 (1981).
Contrary to Park South's argument, it will not be prejudiced if plaintiff is permitted to amend his complaint to assert violations of paragraphs 2 and 4 of the lease, which require Park South to maintain the building and the apartments therein. Ex. A to Kosovsky Aff. As noted previously, the second amended complaint alleged that Park South had caused, inter alia, cracked walls and holes through his bedroom wall and window. Ex. A to Ex. B, at par. 16. Additionally, since plaintiff's cause of action for breach of contract in the second amended complaint alleged violations “including, but not limited to” paragraphs 7 and 18(b) of the lease (Ex. A to Ex. B, at par. 101), Park South was on notice that violations of other provisions of the lease pertaining to its failure to maintain the building or plaintiff's apartment could be alleged. Indeed, as plaintiff asserts, he stated as early as December of 2011 his intention to argue that the wall of the apartment has not been maintained properly (Ex. H to Ex. B, at 30) and counsel for Park South conceded at that time that the condition of the wall and window were in dispute in this litigation. Ex. H, at 76–77.
Further, Park South has not demonstrated that the proposed amendment is in any way improper or devoid of merit. Thus, although plaintiff's second amended complaint sufficiently pleaded a breach of contract claim arising from failure to maintain plaintiff's wall and window in accordance with the lease (see Crossways Apartments Corp. v. Amante, supra ), that branch of plaintiff's motion seeking to amend his complaint to add violations of paragraphs 2 and 4 of the lease is granted to allow plaintiff to plead the claim with greater specificity. The amendment is only intended to particularize plaintiff's breach of contract claim and does not change his theory of liability or require additional discovery. See Mallory Factor, Inc. v. Schwartz, 146 A.D.2d 465, 467 (1st Dept 1989).
Summary Judgment
It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence” to eliminate any material issue of fact from the case. Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 (2008) (internal quotation marks and citation omitted). The “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. See Kosson v. Algaze, 84 N.Y.2d 1019 (1995). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” for this purpose. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). “It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof).” Vega v. Restani Constr. Corp., 18 NY3d 499, 505 (2012).
Upon renewal and reargument, this Court determines that plaintiff has established his prima facie entitlement to summary judgment as a matter of law on the breach of contract claim, pleaded as the second cause of action in the third amended complaint. Ex. K. The elements of a breach of contract claim are the existence of a contract, plaintiff's performance under the contract, defendant's breach of the agreement, and damages resulting from the breach. See U.S. Bank Natl. Assoc. v. Lieberman, 98 AD3d 422, 423 (1st Dept 2012).
As noted above, plaintiff alleges that Park South was obligated by the lease to maintain the building, including the walls and window of his bedroom. This Court need not determine on this motion whether Park South fulfilled its obligation to maintain plaintiff's apartment. That determination was made by the ECB on January 20, 2012, when it found, after a hearing the previous day, that Park South violated Administrative Code § 28–301.1, the code section cited by the DOB in its November 23, 2011 NOV, by “fail[ing] to maintain” the “[b]rick and stone work below [the] interior of [plaintiff's bedroom] window” resulting in deterioration which caused the top of the window to lean outwards approximately one inch. Exs. C and D to Ex. B. Although Park South attended the ECB hearing, it expressly chose not to “put[ ] forth a defense.” Ex. D to Ex. B.
The doctrine of collateral estoppel, or issue preclusion, “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party] had a full and fair opportunity to litigate the issue in the earlier action.” City of New York v. Welsbach Elec. Corp., 9 NY3d 124, 128 (2007), quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349 (1999). “Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity.” Buechel v. Bain, 97 N.Y.2d 295, 303 (2001), cert denied 535 U.S. 1096 (2002), citing Ryan v. New York Tel Co., 62 N.Y.2d 494, 499 (1984). “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action.” City of New York v. College Point Sports Assn., 61 AD3d 33, 42 (2d Dept 2009), citing Buechel, 97 N.Y.2d, supra at 304. “The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.” City of New York v. College Point Sports Assn., 61 AD3d, supra at 42, citing Buechel, 97 N.Y.2d, supra at 304. It is well settled that collateral estoppel is applicable to the determinations of quasi-judicial administrative agencies (see Ogino v. Black, 304 N.Y. 872 [1952] ; Matter of Evans v. Monaghan, 306 N.Y. 312 [1954] ) and the doctrine has been applied to findings of the ECB. See Verdugo v. Seven Thirty One Limited Partnership, 70 AD3d 600 (1st Dept 2010). Here, plaintiff established the existence of a contract, i.e., the lease, which he annexed as Ex. A to his affidavit in support of his initial motion for summary judgment. In that affidavit, he further states that he paid rent regularly to Park South before the damage to his apartment and that, since that time, he has paid it into an escrow account. Thus, plaintiff established the first two elements of his breach of contract claim.
The issue of whether Park South breached the lease by failing to maintain the wall and window of plaintiff's apartment was decided by the ECB in an order dated January 20, 2012, the day after a hearing was held to determine whether Park South had committed the violations with which it was charged by the DOB on November 23, 2011. Exs. C and D to Ex. B. As noted above, counsel for Park South was present at the ECB hearing but did not present a defense. Ex. D to Ex. B. Thus, despite having had a full and fair opportunity to contest the charges against it, Park South opted not to do so. Ex. D to Ex. B. Since plaintiff's allegation herein that Park South failed to maintain his wall and window is “identical to[the] issue which was raised, necessarily decided and material” in the ECB hearing (see City of New York, 9 NY3d supra, at 128 ; Parker, 93 N.Y.2d supra, at 349 ), Park South is collaterally estopped from re-litigating the issue. See Ryan, 62 N.Y.2d, supra, at 500–501. Therefore, upon renewal and reargument, and upon the amendment of the complaint to allege violations of paragraphs 2 and 4 of the lease, plaintiff is granted summary judgment on his breach of contract claim to the extent of finding that Park South breached the lease by failing to maintain the wall and window of his apartment. See Mallory Factor, Inc. v. Schwartz, supra.
This Court notes that, although Park South is collaterally estopped from denying that it failed to maintain the wall and window, the violation is only some evidence of negligence and does not prevent Park South from contesting at trial whether the violation was a substantial cause of any damages sustained by plaintiff on his negligence claim. See Verdugo, supra, at 601; see also Catarino v. State of New York, 55 AD3d 467, 468 (1st Dept 2008).
Given this Court's holding, there is no need to address the separate prayer for relief in plaintiff's notice of motion seeking summary judgment pursuant to CPLR 3212. Additionally, since the second and third amended complaints both sufficiently allege a breach of contract arising from Park South's failure to maintain the premises, its argument that summary judgment cannot be granted on an unpleaded breach of contract claim has no basis.
Park South Has Failed to Raise A Triable Issue of Fact
Park South has failed to raise a triable issue of fact warranting the denial of plaintiff's motion for summary judgment.
Relying on paragraph 29(a) of the lease, Park South argues that plaintiff's motion for summary judgment on his breach of contract claim must be denied since it cannot be held liable herein unless it is found negligent. That paragraph provides as follows:
29. (a) [Park South's] Immunities. [Park South] shall not be liable, except by reason of [its own negligence], for any failure or insufficiency of [any building services]. No abatement of rent or other compensation or claim of eviction shall be made or allowed because of the making or failure to make or delay in making any repairs, alterations or decorations to the [b]uilding, or any fixtures or appurtenances therein, or for space taken to comply with any law, ordinance or governmental regulation, or for interruption or curtailment of any service agreed to be performed by [Park South], due to accidents, alterations or repairs, or to difficulty or delay in securing supplies or labor or other cause beyond [Park South's] control, unless due to [Park South's] negligence.
In support of his argument, plaintiff relies on 905 5th Assocs., Inc. v. 907 Corp., 47 AD3d 401 (1st Dept 2008). In that case, a cooperative owner alleged that a renovation performed for her upstairs neighbors constructively evicted her from her office. Plaintiff's proprietary lease provided, inter alia, that the cooperative “shall not be liable for ... injury or damage to person or property caused by ... another tenant ... unless caused by the negligence of the [cooperative].” She sued the neighbors, their contractors, and the cooperative corporation. The claim against the cooperative was dismissed on the ground that plaintiff failed to present any evidence that it caused the damage and that she failed to show that she did not cause the damage when she renovated her own unit. The court also held that plaintiff failed to demonstrate that the cooperative controlled the contractors' work or that it was negligent in its approval of the renovation plan. The court held that, since there was no evidence of any negligence on the part of the cooperative, the latter was shielded by the proprietary lease.
In seeking to prove that the cooperative was negligent, plaintiff in 905 5th Corp. relied on a notice of violation issued against the cooperative. However, the notice did not allege any affirmative acts of negligence by the cooperative and there was no finding of any wrongdoing by it. The instant case is clearly distinguishable, however, since there was not only a NOV issued against Park South, but the ECB found, after a hearing, that Park South failed to maintain the wall and the window in plaintiff's apartment. Exs. C and D to Ex. B.
Further, this Court finds that, as a matter of public policy, Park South cannot avail itself of the immunity paragraph 29(a) was designed to provide. Although Park South maintains that it cannot be liable to plaintiff unless it is found to be negligent, it undermined plaintiff's ability to establish its negligence when it engaged in the “willful and intentional” destruction of evidence. Ex. F to Ex. B, at 8. As a result of Park South's actions, this Court granted a spoliation motion by plaintiff and Eliseo to the extent of, inter alia, precluding Park South from introducing any evidence or testimony “that either plaintiff or his predecessor in title was responsible for the deterioration of the subject wall.” Id., at 10. Since Park South's actions rendered it impossible for the parties to determine whose negligence, if any, damaged the wall and window in plaintiff's bedroom, it would be a miscarriage of justice to allow Park South to avail itself of the exculpatory language of paragraph 29(a). See generally A.H.A. General Constr., Inc. v. New York City Hous. Auth., 92 N.Y.2d 20 (1998) (a party to a contract cannot insist upon a condition precedent where he or she has impeded or prevented the condition from occurring); Kalisch–Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 384–385 (1983) (an exculpatory provision “will not apply to exemption of willful or grossly negligent acts”).
Although Park South attacks the spoliation order on the ground that it allegedly provided its adversaries the opportunity to inspect plaintiff's unit, this belated contention is improperly raised in its opposition to plaintiff's motion, since an appeal or motion for reargument is the proper vehicle for such a challenge.
Finally, contrary to Park South's contention, the business judgment rule does not protect a cooperative board from its own breach of contract. See Dinicu v. Groff Studios Corp., 257 A.D.2d 218 (1st Dept 1999).
In light of the foregoing, Park South has failed to raise an issue of fact warranting the denial of plaintiff's motion for summary judgment and the issue of damages resulting from its breach of the lease will be resolved at trial. See Nwugwo v. Mt. Vernon Neighborhood Health Center, 3 AD3d 364 (1st Dept 2004).
Park South's Cross Motion
Park South's cross motion must be denied in all respects.
First, Park South's argument that plaintiff's motion is untimely is without merit. Although Park South correctly asserts that this motion was filed more than 120 days after the notice of trial was filed in 2010, while this matter was still pending in Civil Court, New York County, this Court granted plaintiff permission to bring the instant motion (Ex. G to Ex. B, at 10–11) upon a showing of good cause. See CPLR 3212(a) ; Jim Beam Brands Co. v. Tequila Cuervo La Rojena, S.A. De C.V., 85 AD3d 556 (1st Dept 2011). Specifically, between the time the notice of trial was filed and the time this Court granted plaintiff leave to move for summary judgment, the ECB determined that Park South failed to maintain plaintiff's unit (Exs. C and D to Ex. B) and Park South was sanctioned for spoliating evidence. Ex. F to Ex. B.
Also without merit is Park South's argument that this Court improperly converted plaintiff's motion in limine into a motion for summary judgment. It is clear from the transcript of proceedings held before this Court on August 13, 2013 that plaintiff's motion in limine for a directed verdict was withdrawn and plaintiff's counsel, with this Court's permission, stated his intention to file a motion for summary judgment. Ex. G to Ex. B, at 10–11. Therefore, Park South's reliance on Rivera v. City of New York, 306 A.D.2d 456 (2d Dept 2003), which held that the court improperly converted a motion in limine to one for summary judgment, is misplaced.
Given the foregoing, Park South's cross motion is denied in all respects.
Therefore, in light of the foregoing, it is hereby:
ORDERED that plaintiff's motion for renewal of his November 5, 2013 motion for summary judgment is granted; and it further,
ORDERED that plaintiff's motion for reargument of his November 5, 2013 motion for summary judgment is granted; and it is further,
ORDERED that plaintiff's motion to amend the second amended complaint is granted and plaintiff shall serve his executed third amended complaint, in the form annexed to plaintiff's moving papers, within 20 days after service of this order with notice of entry; and it is further,
ORDERED that, upon renewal and reargument, and upon amendment of the second amended complaint, plaintiff's motion for summary judgment on his breach of contract claim against defendants is granted to the extent that defendants are liable based on their failure to maintain the wall and window of plaintiff's apartment; and it is further,
ORDERED that the amount of damages to be awarded to plaintiff on the breach of contract arising from Park South's failure to maintain the wall and window of his apartment shall be determined at trial; and it is further,
ORDERED that the action shall continue as to plaintiff's remaining causes of action; and it is further,
ORDERED that defendants' cross motion is denied in all respects; and it is further,
ORDERED that plaintiff shall, within 20 days of this order, serve a copy of this order with notice of entry upon counsel for all parties hereto and upon the Clerk of the Trial Support Office (Room 158); and it is further,
ORDERED that the parties are to appear for a settlement conference on January 14, 2015 at 80 Centre Street, Room 280, at 2:30 p.m., and it is further,
ORDERED that this constitutes the decision and order of the Court.