Opinion
No. 113297/2005.
2010-06-9
Jacqueline Do Espirito SANTO, Shane Santo, and Christopher Santo, Plaintiffs, v. ROSE ASSOCIATES, INC., Metropolitan Tower Life Insurance Company, and PCV St Owners, LP., Defendants.
Belkin Burden Wenig & Goldman, LLP by Stacy Shimony, Esq., New York City, for Defendants. Lee M. Nigen & Associates, P.C. by Jeffrey Lubin, Esq., Brooklyn, for Plaintiff.
Belkin Burden Wenig & Goldman, LLP by Stacy Shimony, Esq., New York City, for Defendants. Lee M. Nigen & Associates, P.C. by Jeffrey Lubin, Esq., Brooklyn, for Plaintiff.
PAUL G. FEINMAN, J.
Defendants move for summary judgment seeking dismissal of the complaint and to strike plaintiff's jury demand. For the reasons set forth below, defendants' motion is granted in part and denied as academic in part.
Background
Plaintiff Jacqueline Do Espirito Santo (“Santo”) and her sons reside at 18 Stuyvesant Oval, apartment 1G, New York County. In August of 2005, Santo was served with a notice of non-renewal by defendant Rose Associates Inc., managing agent for defendant Metropolitan Tower Life Insurance Company, the premises' former owner (Doc. 3 Ex. B).
In September 2005, Santo commenced this action alleging a single cause of action—breach of the lease agreement (Doc. 3 Ex A). Then, in February 2006, Metropolitan commenced a holdover proceeding premised upon non-primary residence against the plaintiffs Santo, the tenant, and her sons (Doc. 3 Ex. D) (see Metropolitan Tower Life Ins. Co. v. Santo, index No. 055635/2006 [Hous Part, N.Y. County 2006] ) (“Housing Court matter”).
Unless otherwise indicated, all references are to the above-listed document numbers.
In April 2006, another justice of this court granted defendants' motion to stay this matter pending the resolution of the Housing Court matter (Doc. 3 Ex. C). The Housing Court matter was delayed because Santo underwent brain surgery and was allegedly unable to conduct a meaningful deposition because she suffered memory loss. Accordingly, in March 2007, the parties executed a stipulation consenting to adjourn Santo's deposition (Doc. 3 Ex. I), and in July 2008, after Santo's deposition occurred, defendants moved to discontinue the Housing Court matter; the defendants' motion was granted on default (Doc. 3 Ex. L). About one month later, Santo and ST Owners LP, Metropolitan's successor in interest, executed a renewal lease (Doc. 3 Ex. M).
Since then, plaintiffs have filed two amended summons and complaints. The third amended summons and complaint alleges two causes of action: the first alleges breach of the lease agreement and the second alleges harassment, nuisance, and intentional infliction of emotional distress, all as one cause of action (Doc. 3 Ex. O).
Analysis
The proponent of a motion for summary judgment bears the initial burden of establishing entitlement to judgment as a matter of law by demonstrating the absence of material issues of fact and the need for a trial ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986];Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985];Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). The burden of raising a material question of fact then shifts to the opponent and evidence is viewed in a light most favorable to that party ( see Torkel v. NYU Hosps. Ctr., 63 AD3d 587, 592 [1st Dept 2009]; Brown v. Muniz, 61 AD3d 526, 531 [1st Dept 2009] ). At this juncture, the court must find, rather than determine, issues ( see Bautista v. David Frankel Realty, Inc., 54 AD3d 549, 556 [1st Dept 2008] ). Thus, questions of credibility “are best resolved by the trier of fact” (Martin v. Citibank, N.A., 64 AD3d 477, 485 [1st Dept 2009] ).
The first cause of action is for breach of lease. Plaintiffs premise this alleged breach upon Metropolitan's commencement of the Housing Court Matter, claiming “[t]hat [d]efendants refused to renew [Santo's] lease agreement under the Rent Stabilization Code, due to the allegation that [Santo] does not use the subject premises as her primary residence” (Doc. 3 Ex. O ¶¶ 11–20). Inasmuch as neither party disputes that Metropolitan voluntarily discontinued the Housing Court matter (Doc. 3 Ex. L) and that Santo and ST Owners LP, Metropolitan's successor in interest, executed a renewal lease in August 2008 the term of which ends in October 2010 (Doc. 3 Ex. M), there appears to be no basis upon which plaintiffs' breach of lease claim remains viable. Notably, Metropolitan made the motion to discontinue; Santo defaulted. Moreover, to the extent that plaintiffs are attempting to relitigate the merits of the Housing Court matter's claims, it would be improper for this court to allow relitigation of issues which should properly have been addressed before the Housing Court; if plaintiffs wanted to contest those issues, the appropriate remedy would have been to appear before that forum and do so, rather than default.
Turning to plaintiffs' second cause of action, the court notes that plaintiffs' complaint seems to conflate multiple causes of action into one. There are, as best the court can discern, three potential claims contained in this one cause of action: harassment, private nuisance, and intentional infliction of emotional distress (Doc. 3 Ex. O ¶¶ 22–35). However, plaintiffs' affirmation in opposition states that “[t]he [c]omplaint states two separate causes of action, the first is for emotional damages and the second is for harassment in violation of duties imposed by NYC Administrative Code, § 27–2005” (Doc. 4 ¶ 6). In light of the procedural context, this court will address the issue of summary judgment as to each of those particular claims as though they had been distinctly pleaded.
The thrust of plaintiffs' harassment, nuisance, and intentional infliction of emotional distress claims is that the defendants engaged in a course of conduct to harass Santo while knowing that she was suffering from a serious medical condition and that this shows the defendants' conduct was of an unreasonable and intentional nature. However, defendants submit evidence showing that “at no time prior to March 2007 had defendants or their attorneys been informed that [Santo] had suffered a brain injury” (Doc. 2 ¶ 24), which was approximately 13 months after the Housing Court litigation was commenced and approximately 17 months after Santo commenced this action. Plaintiffs have failed to offer evidence to rebut this. Accordingly, the record does not support plaintiffs' arguments to the extent that they are premised upon defendants' alleged knowledge of Santo's condition at the time they commenced the Housing Court action.
With respect to the harassment claim, plaintiffs generally allege that defendants harassed them, but the third amended complaint fails to specify which provision of Local Law 7 was allegedly violated; the affirmation in opposition invokes subdivisions d and g (Doc. 4.¶¶ 21–31). “Local Law 7 of 2008 ... protects residential tenants from harassment by building owners” (Aguaiza v. Vantage Props., LLC, 69 AD3d 422, 423 [1st Dept 2010]; see Administrative Code of City of N.Y. § 27–2004[a][48] ). Subdivision d defines harassment as “commencing repeated baseless or frivolous court proceedings,” and subdivision g, the catch-all provision, defines harassment as “other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet” of a tenant ( see Administrative Code of City of N.Y. § 27–2004[a][48][g] ).
Defendants point to the transcript of Santo's deposition, in which she conceded that defendants had never commenced an action against her other than the one Housing Court matter (Doc. 3 Ex. S at 71). Plaintiffs respond by asserting that defendants' alleged conduct was “not directed at [p]laintiffs alone, they were part of a bigger plan, scheme, and campaign to intimidate rent stabilized tenants” (Doc. 4 ¶ 28). Plaintiffs explain that “[u]nder subpart (g) there must be repeated acts but there is no requirement that each of those acts be directed specifically toward the tenant bringing suit” (Doc. 4 ¶ 29).
This construction is flawed. Subdivision g requires that the repeated acts be directed at the particular “person lawfully entitled to occupancy of such dwelling unit.” Thus, even assuming that defendants' course of conduct toward another tenant would constitute a single instance of harassment, which plaintiffs have not demonstrated, for the purposes of establishing “repeated acts or omissions,” the statute contemplates the aggregation of harassment instances directed at a single particular tenant.
This court cannot consider plaintiffs' exhibit 1, which consists of a press release and newspaper article, because neither has probative value; they are not sworn evidence in admissible form ( seeCPLR 3212 [b]; Kramer v. Danalis, 66 AD3d 539, 540 [1st Dept 2009] ).
Regarding subdivision d, the record belies plaintiffs' conclusory assertions that the Housing Court matter was frivolous and, in any event, that was a single proceeding which is not actionable given the statute's conjunctive language requiring both “repeated” and “baseless or frivolous court proceedings.” Thus, defendants are entitled to summary judgment dismissing the harassment claim.
Next, to impose liability for private nuisance, plaintiffs must demonstrate that the defendants' conduct was (1) intentional, (2) unreasonable, and (3) substantially interfered with plaintiffs' right to use and enjoy land ( see Copart Indus. v. Consolidated Edison Co. of NY, 41 N.Y.2d 564, 570 [1977];PJI 3:16). Defendants argue that this claim must be dismissed because it is entirely premised upon the fact that they commenced the Housing Court matter which plaintiffs argue was frivolous and constituted a nuisance. Inasmuch as the Housing Court found the petition meritorious enough to survive a motion to dismiss (Doc. 3 Ex. E), the character of defendants' conduct, “a discrete, one-time event,” cannot be said to rise to the level of unreasonableness such that liability for private nuisance could be imposed (Bloomingdales, Inc. v. New York City Tr. Auth., 52 AD3d 120, 128 [1st Dept 2008], affd13 NY3d 61 [2009] ). The court notes that the Housing Court, which was in the best position to assess the merit or lack thereof of the litigation pending before it, did not impose sanctions for frivolous litigation. This court will not entertain plaintiffs' attempt to relitigate issues that should have been properly raised before that forum, if at all ( see Matter of Capoccia, 275 A.D.2d 804, 806–807 [3d Dept 2000], lv denied95 N.Y.2d 769 [2000] ). For these same reasons, the record before this court by no means demonstrates that the “character” of defendants' conduct is “so outrageous [nor] so extreme in degree, as to go beyond all possible bounds of decency [or would be] utterly intolerable in a civilized community' “ ( Marmelstein v. Kehillat New Hempstead: Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22–23 [2008], quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 [1983];accordRestatement [Second] of Torts § 46, Commend d.; seePJI 3:6). Given the absence of any allegations, let alone evidence, that would allow for the viability of plaintiffs' intentional infliction of emotional distress claim, that branch of defendants' motion seeking to dismiss this claim must also be granted ( see McRedmond v. Sutton Place Rest. & Bar, Inc., 48 AD3d 258, 259 [1st Dept 2008]; see also Colina v. One East River Place Realty Co., LLC, 2000 WL 1171126, *4 [SD N.Y.2000] [“a single non-primary residence proceeding ... does not meet New York's very strict' application of the outrageousness element”] ).
Moreover, because it is well settled that “New York does not recognize a separate cause of action to impose sanctions pursuant to 22 NYCRR 130–1.1(c),” defendants' “counterclaim” for sanctions is dismissed (Schwartz v. Sayah, 72 AD3d 790, 792 [2d Dept 2010] [citations omitted] ). Finally, given the foregoing, defendants' motion to strike plaintiffs' jury demand is denied as academic.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is granted to the extent that the complaint is dismissed in its entirety; the motion is otherwise denied; and it is further
ORDERED that defendants' counterclaim for sanctions is dismissed; and it is further
ORDERED that a copy of this order be served upon the Clerk of Court, 60 Centre Street, Basement, New York, N.Y. 10007 who shall enter judgment accordingly; and it is further
ORDERED that, in light of the foregoing, the appearance in Mediation–I scheduled for July 13, 2010 is cancelled and the parties need not appear.
This constitutes the decision and order of the court.