Opinion
25537/2009
12-14-2011
Faramarz Roshodesh, Plaintiff, v. Adam Plotch, et al., Defendants.
For Plaintiff:Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq. For Defendant Gerard Owners: Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq. For Defendant Gerard Owners in the main action: Perez & Varvaro, by Keith J. Frank, Esq. For Defendant Plotch: Baron & Baron, by David J. Baron & Kristen A. Meilak, Esqs. For Defendants Eason and New York City Department of Finance: Michael Cardozo, Esq., Corporation Counsel, by Waren Shaw, Esq.
For Plaintiff:Rothkrug Rothkrug & Spector LLP, by Simon H. Rothkrug, Esq.
For Defendant Gerard Owners: Rosen Livingston & Cholst, LLP, by Andrew J. Wagner, Esq.
For Defendant Gerard Owners in the main action: Perez & Varvaro, by Keith J. Frank, Esq.
For Defendant Plotch: Baron & Baron, by David J. Baron & Kristen A. Meilak, Esqs.
For Defendants Eason and New York City Department of Finance: Michael Cardozo, Esq., Corporation Counsel, by Waren Shaw, Esq.
Charles J. Markey, J.
Notice of Motion - Affidavits - Exhibits........................................1
Answering Affidavits - Exhibits.....................................................2-3
Plaintiff Faramarz Roshodesh moves for leave to reargue a prior decision of this Court that granted a motion by defendant Gerard Owners Corp for summary judgment dismissing the complaint and all of the cross claims against it. That decision is reported at Roshodesh v Plotch, 32 Misc 3d 1207(A), 2011 WL 2586401, 2011 NY Slip Op 51198(U) [Sup Ct Queens County June 29, 2011].
The facts of this case are contained in the Court's prior decisions in this vigorously litigated case, including: Roshodesh v Plotch, 32 Misc 3d 1206(A), 2011 WL 2586405, 2011 NY Slip Op 51197(U) [Sup Ct Queens County 2011]; Roshodesh v Plotch, 32 Misc 3d 1207(A), 2011 WL 2586401, 2011 NY Slip Op 51198(U) [Sup Ct Queens County 2011]; Roshodesh v Plotch, 29 Misc 3d 1220(A), 2010 WL 4540452, 2010 NY Slip Op 51912(U) [Sup Ct Queens County 2010]. Briefly, as found by this Court in its decision and order dated June 29, 2011, that granted defendant Gerard Owners Corp.'s previous motion for summary judgment dismissing the complaint and all of the cross claims asserted against it, the facts are as follows:
In early 2006, defendant Gerard Owners Corp., the owner of a building located at 70-25 Yellowstone Boulevard, Forest Hills, New York, began three separate summary nonpayment proceedings against plaintiff Roshodesh in the New York City Civil Court, County of Queens which involved Apartments 3U, 3V, and 7Y respectively:
(1) Gerard Owners Corp. v. Roshodesh, Index No. 53224/06 (the 3U proceeding),
(2) Gerard Owners Corp. v. Roshodesh, Index No. 54568/06 (the 3V proceeding), and
(3) Gerard Owners Corp. v. Roshodesh, Index No. 51429 (the 7Y proceeding).
The parties never consolidated these three separate nonpayment proceedings.
In November, 2006, the judge in these summary proceedings appointed a guardian ad litem (Thomas Giles) to look after Roshodesh's interests. The parties eventually conducted a joint trial of the three proceedings before Judge Tao on March 3, 2008, and Giles defended the proceedings on the behalf of Roshodesh, who did not himself appear. After the trial, Judge Tao awarded Gerard a judgment of $35,756.37 in the 3V proceeding, a judgment of $18,090.17 in the 3U proceeding, and a judgment of $13,393.12 in the 7Y proceeding.
Upon being served with notice of entry of the judgments and orders, Roshodesh attempted to obtain stays, and he obtained a temporary stay in the 3V proceeding conditioned upon the deposit of $35,756.37 with the New York City Department of Finance. Roshodesh deposited this sum, but he did not deposit the sum of $13,393.12 necessary to obtain a stay of the separate 7Y proceeding. By decision and order dated September 26, 2008, the Appellate Term for the Second and Eleventh Judicial Districts, inter alia, denied Roshodesh a stay pending the hearing and determination of his appeal from the 7Y judgment, but granted Roshodesh a stay pending the hearing and determination of appeals pertaining to 3U and 3V post-trial motions. The Department of Finance erroneously released the sum deposited in the 3V proceeding to the attorneys for Gerard, and they kept the sum in their escrow account.
Gerard entered the judgment for $13,353.12 rendered in the 7Y proceeding with the Clerk of Civil Court on March 14, 2008, and because Roshodesh failed to satisfy the judgment or deposit the amount of the judgment with the Department of Finance, on July 8, 2008, Gerard issued an execution notice with notice to garnishee (Gerard) directing the Sheriff to levy upon the shares of stock pertaining to Apartment 7Y. Roshodesh subsequently served the Sheriff with an order to show cause dated July 22, 2008.
After the Appellate Term denied Roshodesh's motion for a stay pending appeal of the 7Y judgment, Gerard issued a second execution notice to the Sheriff directing him to levy on the shares of stock pertaining to Apartment 7Y. The Sheriff did so, and he sold the stock at a public auction held on or about November 19, 2008. Defendant Adam Plotch successfully bid $96,000 for the apartment.
The plaintiff began this action on or about September 22, 2009. The first cause of action is for a judgment declaring that the Sheriff's sale of the shares allocated to Apartment 7Y was void and that the plaintiff lawfully owns the shares. The second cause of action is against the Sheriff for negligence. The third cause of action is for an accounting of the rents paid by the tenant in Apartment 7Y to defendant Plotch. The fourth cause of action is for a "restraining order" prohibiting, inter alia, the sale of Apartment 7Y.
Gerard successfully moved for summary judgment dismissing the complaint against it and all of the cross claims against it. (See the decision and order of this court dated June 29, 2011.)
Leave to reargue is warranted because plaintiff Roshodesh has attempted to show that "the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision." (Schneider v. Solowey, 141 AD2d 813; see, CPLR 2221[d]; Grassel v. Albany Med. Ctr. Hosp., 223 AD2d 803; William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22). The attempt is futile.
The plaintiff contends that this Court erroneously determined that he obtained a temporary stay of the 3V proceeding by depositing the sum of $35,756.37 with the New York City Department of Finance but that he did not deposit the sum of $13,393.12 necessary to obtain a stay of the separate 7Y proceeding. The plaintiff alleges that the record on the prior motion included an exhibit which shows that he deposited the sum of $35,756.37 to obtain a stay of all three proceedings. The exhibit is an order to show cause submitted by the plaintiff's guardian ad litem to the Appellate Term, bearing the index numbers of all three proceedings brought by Gerard against Roshodesh, which sought a stay of " all proceedings pending determination of appeal."
On July 7, 2008, the Honorable Michael L. Pesce, Justice of the Appellate Term, granted the temporary stay "conditioned upon the movant depositing with the clerk of the court below the sum of $35,756.37 on or before 5 P.M. July 14, 2008." The plaintiff interprets the order of the Appellate Term Justice as directing the deposit of $35,756.37 for all three proceedings.
This Court rejects the plaintiff's interpretation. The judgment against Roshodesh in the 3V proceeding amounted to $35,756.37, which matches to the penny the sum that the appellate order required Roshodesh to deposit. Moreover, by decision and order dated September 26, 2008, the Appellate Term, inter alia, denied Roshodesh a stay pending the hearing and determination of his appeal from the 7Y judgment, noting that " no possessory judgment was awarded in the proceeding brought up for review under Appeal No. 2008-1660 QC [regarding Apartment 7Y] and that tenant may obtain a stay of said judgment by depositing the amount of the judgment into the court below ***." The Appellate Term itself did not regard the $35,756.37 already on deposit as applicable to the 7Y proceeding.
Upon the foregoing papers, it is ordered that leave to reargue is granted. Upon reargument, the Court adheres to its prior decision and order (one paper) dated June 29, 2011.
The foregoing constitutes the decision, order, and opinion of the Court.
______________________________
Hon. Charles J. Markey
Justice, Supreme Court, Queens County
Dated: Long Island City, New York