Opinion
No. L & T 70327/11.
03-10-2015
Naftali STEINMETZ, Petitioner–Landlord, v. Kathleen SANTIAGO, et al, Respondents–Tenants. Naftali Steinmetz, Petitioner–Landlord, v. Sara Oyala, et al, Respondents–Tenants.
Opinion
The above captioned holdover proceedings were commenced by the petitioner and previously consolidated. In each proceeding, the petitioner seeks possession of the apartments which are the subject of each action, upon the contention that the apartments are needed for members of the petitioner's immediate family. Previous motion practice included petitioner's application for use and occupation pendente lite and respondents' application for consolidation and for discovery. Following completion of discovery, the matters were placed on the court calendar on June 13, 2013, for trial and for a hearing on petitioner's applications for use and occupation pendente lite. On that date, the parties appeared through counsel, but the matters did not proceed to trial or hearing. It appears from a review of the court file that on June 13, 2013, the cases were transferred to a trial/hearing part. A hearing was not conducted and the disposition contained on the court files state that each proceeding was settled and the stipulations were to be filed at a later date. However, following the June 13, 2013 court date, the parties failed to memorialize a settlement, and petitioner commenced the instant applications.
Despite that the court file indicates that the instant matters were consolidated, petitioner filed two (2) separate motions, one (1) for each above captioned proceeding. Accordingly, throughout this decision, this court will refer to the matter(s) sub juris, interchangeably in the singular and in the plural.
Petitioner's counsel states that on June 13, 2013, the matters were adjourned for five (5) days, to June 18, 2013, “for an unknown reason” see Benjamin Epstein, Esq., Affirmation dated March 4, 2014 at ¶ 16. This court takes judicial notice that the markings on the court files are dated June 13, 2013 and not June 18, 2013. This court also notes that Mr. Epstein was not the attorney that appeared in court on either June date, and nothing in the court file or e-law, demonstrates that the matters were adjourned to June 18, 2013. Accordingly, this court will use June 13, 2013, as the proper disposition date.
PETITIONER'S MOTION
In each notice of motion currently before the court, petitioner seeks:
“an Order restoring the within holdover action which was marked off calendar June 18, 2013, pending settlement negotiations....”
In support of petitioner's motions, counsel for the petitioner states that on the date the matters were marked for trial, “the parties agreed to mark the case off calendar with permission from the Court pending settlement negotiations”
Benjamin Epstein, Esq., Affirmation, dated March 4, 2014 at ¶ 16.
Petitioner contends that on the date these consolidated cases were scheduled for trial (June 13, 2013) each matter was marked “off calendar” and since the instant motions were commenced within one (1) year of said marking, each motion is timely and must be granted.
Petitioner cites 22 NYCRR § 208.14 to support its position. Respondents' argued that 22 NYCRR § 208.14 is inapplicable because the matter was marked “settled” and not “off calendar.” This issue is addressed later in this decision.
Benjamin Z. Epstein, Esq., affirmation, dated March 4, 2014 at ¶ 22.
RESPONDENT'S OPPOSITION AND SUR REPLY
In opposition, respondents claim that contrary to petitioner's contention that the proceedings were marked “off calendar” on June 13, 2013, the matters were actually marked “settled” with a notation that the stipulations were to be filed with the court at a later date. In opposition counsel for the respondents asserts that “[p]etitioner has abandoned these cases and should not now be permitted to restore the holdover proceedings at the [p]etitioner's convenience.” In sur-reply respondents asserted that on the June 13, 2013 trial date, the matters were marked “settled” and not “off calendar” as asserted by the petitioner.
Ada V. Anon, Esq., affirmation in opposition, dated April 25, 2014 at ¶ 4.
See also, Ada V. Anon, Esq., sur-reply affirmation, dated May 28, 2014 at ¶ 3.
Counsels for the parties stipulated that sur-replies may be submitted.
Affidavits of Mitch McGuffy, Esq, dated May 28, 2014 at ¶ 11 et seq.
PETITIONERS' REPLY
In opposition to the allegations made in respondent' opposition, petitioners' counsel argues that the court should not consider respondents' opposition, because Ms. Anon's affirmation consists mainly of facts based upon “information and belief” and not on actual first hand personal knowledge.
“the affidavit submitted by one of the neighboring business owners was insufficient .... because it was based upon information and belief rather than personal knowledge” King's Court Restaurant, Inc. v. Hurondel I, Inc., 87 AD3d 1361 (4th Dept [2011] ).
Benjamin Z. Epstein, Esq., reply affirmation dated May 23, 2014 at ¶¶ 4–5.
As the allegations in Ms. Anon's affirmation are largely based “upon information and belief” they are insufficient to form factual conclusions and therefore will not be considered by the court. However, as her affirmation also contains sound legal arguments relating to undisputed facts, the legal arguments contained in her affirmation will be considered in opposition to petitioner's motions.
Ada V. Anon, Esq., affirmation in opposition, dated April 25, 2014 at ¶¶ 12, 16, 17, et seq.
The “affirmation of [the] attorney who demonstrated no personal knowledge of the [facts] ....is without evidentiary value and thus unavailing” Zuckerman v. City of New York, 49 N.Y.2d 557 ( [1980] ).
Additionally, at the initial oral argument, petitioners' counsel argued that this court should not consider the affidavit of Mitch McGuffy, Esq, in support of each of respondents' sur-reply, since each contains facts not previously alleged, which is improper for reply papers.
Dyer v. 930 Flushing, LLC, 118 AD3d 742 (2nd Dept [2014] ) “the [document] submitted ... for the first time in the reply papers was not properly before the ... Court.”
In his affidavits, Mr. McGuffy states that he previously co-represented the respondents, and was present, on the record when the matters were heard on June 13, 2013 and the judge then presiding “marked the cases settled.” The allegations in Mr. McGuffy's affidavits are not new allegations, but merely previously asserted facts, and as a result, petitioner would not be surprised or prejudiced by this court considering the statements in the documents.
Affidavits of Mitch McGuffy, Esq, dated May 28, 2014 at ¶ 11.
Schelchere v. Halls, 120 AD3d 788 (2nd Dept [2014] ) “... prejudice ... would result from ... plaintiffs' improper submission of ... supporting evidence for the first time in their reply papers ...”
Notably, the affidavits of Mr. McGuffy were signed before a notary in the state of Mississippi, and are not accompanied by certificates of conformity and therefore not in proper evidentiary form. However, since petitioner failed to raise this objection, it is waived and because the irregularity is not fatal the affidavits will be considered by the court.
“the Town failed to present evidence in admissible form ... as the affidavit of its expert ... which was made and notarized in the State of New Jersey, lacked the required certificate of conformity” Hunter Sports Shooting Grounds, Inc. v. Foley, 120 AD3d 759 (2nd Dept [2014] ).
Bronze Acupuncture, P.C. v. Travelers Ins. Co., 43 Misc.3d 143(A) (App Term 2nd Dept 11th & 13th Jud Districts [2014] ) “[p]laintiff's contention that defendant improperly based its motion upon an out-of-state affidavit that was not in compliance with CPLR [§ ]2309(c) was improperly raised for the first time on appeal and, thus, was waived.”
“Although the claims representative's affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR [§ ]2309(c) and Real Property Law § 299–a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect” Healing Art Acupuncture, P.C. v. Amica Mut. Ins. Co., 46 Misc.3d 138(A) (App Term 2nd 11th & 13th Jud Districts [2015] citing to Fuller v. Nesbitt, 116 AD3d 999 (2nd Dept [2014] ).
INITIAL ORAL ARGUMENT
Based upon the conflicting accounts of the June 13, 2103 dispositions of the cases, and that neither party annexed a copy of the transcript of the June 13, 2103 record to their submissions, this court previously adjourned the instant matters for a copy of the transcript to be submitted. The transcript for each proceeding was subsequently submitted to this court. However, a review of each transcript fails to shed light on this issue, since each transcript memorializes the dialogue between the court and counsel prior to the cases being transferred to the expediter for trial/hearing assignment.
The proceedings were subsequently adjourned pending further settlement negotiations.
FINAL ORAL ARGUMENT
Final oral argument on the motions was scheduled for February 26, 2015. On that date the Law Office of Benjamin Z. Epstein, PC, by, Benjamin Z. Epstein, Esq., represented the petitioner and Brooklyn Legal Services Corporation A, by, Gregory Louis, Esq., represented respondents at oral argument. The official court record reflects that oral argument spanned in excess of two (2) hours and ten (10) minutes. Satisfied that the attorneys fully briefed the court on the issues to be decided on the motions, the motions were marked “submitted.” This court now issues the instant decision/order.
At the request of respondents' counsel, this court permitted respondents to issue personal statements on the record. Each respondent asserted that conditions in each of their apartments in need of repair, exist. Mr. Epstein opposed the allegations, but agreed to prepare a list of the claimed needed repairs to forward to his client, along with access dates to address the conditions. Additionally, respondents also stated on the record that they would like this case concluded, as it is a persistent source of significant stress to each respondent and each respondents' family. This court is mindful of the matters involved herein, and the emotional toll that the pendency of a holdover summary proceeding, places on a litigant. Accordingly, this court will address the issues raised in this motion, as sensitively and expeditiously as possible.
The lengthy argument on the single issue of whether a case should be restored to a calendar is, to this court, a testament of the lawyers' preparedness and respect to each other, their clients and the bench.
TRIAL READY CASE DISPOSED OF AS “OFF CALENDAR”
RPAPL § 731(2) requires that in holdover proceedings “..the notice of petition shall specify the time and place of the hearing ...” This process automatically places the matter on the court calendar and “gives the court the ability to monitor and control its cases.” Given the volume of cases filed in Housing Court the ability to monitor and control cases is crucial to facilitate timely resolution of matters.
Civil Court of the City of New York, Directives and Procedures, DRP–181, Subject: “Off Calendar” Marking Category: GP–40, LT–10, Eff. Date: February 4, 2008 (“DRP–181–2008”), which can be accessed at http://ww w.nycourts.gov/courts/nyc/SSI/directives/DRP/drp181.pdf.
see below, footnotes 28–31.
DRP–181–2008.
Indeed, in the year 2014, there was a total of 264,358 Housing Court summary proceedings filed and a total of 213,482 noticed motions/orders to show cause filed in the Landlord/Tenant Clerk's offices throughout the five (5) boroughs of New York City. During that same year (2014) 91,746 petitions were filed in the Bronx County Landlord/Tenant Clerk's office which represents an increase from the 89,653 petitions filed there in 2013. Additionally, in 2014, 74,991 petitions and 59,158 noticed motions/orders to show cause, were filed in the Kings County Landlord/Tenant Clerk's office.
This court thanks Eddy Valdez, Deputy Chief Clerk, Civil Court, Kings County and Melinda Alexander, Supervisor, Civil Court, Kings County–Housing Part, for providing the official Statistical Analysis Reports to assist with the issuance of this decision.
Civil Court of the City of New York. [city-wide] Statistical Report of Activity of L & T Clerks office terms: 1–13 of the Year 2014.
Civil Court of the City of New York. [Bronx County] Statistical Report of Activity of L & T Clerks office terms: 1–13 of the Year 2014.
Civil Court of the City of New York. [Bronx County] Statistical Report of Activity of L & T Clerks office terms: 1–13 of the Year 2013.
Civil Court of the City of New York. [Kings County] Statistical Report of Activity of L & T Clerks office terms: 1–13 of the Year 2014.
As a result of the volume of Housing Court cases commenced and applications filed in those proceedings, Justice Fern A. Fisher, in the exercise of her authority as Deputy Chief Administrative Judge issued a directive requiring, that: “[i]n any summary proceeding when the action cannot go forward, the case should be dismissed, withdrawn or adjourned with a control date set.” The directive specifically states that “[t]he practice of using the disposition of Off Calendar defeats th[e court's] ability [to control cases] and instead causes the loss of control over pending cases that should be monitored by the court.”
See 367 East 201st Street LLC v. Velez, 31 Misc.3d 281 (Sup Ct Bronx County [2011] ), citing to:
New York State Constitution “[t]he chief administrator ... shall supervise the administration and operation of the unified court system [and] shall have such powers and duties as may be delegated to him or her by the chief judge ...” N.Y. Const Art VI § 28 (b); and
New York Codes, Rules and Regulations “[t]he deputy chief administrators for the courts shall .... supervise the day-to-day operations of the courts ... and oversee the administrative actions of the Administrative Judges of the courts .... issue directives and orders necessary to implement these powers and duties [and] ... do all other things appropriate to exercise their aforesaid functions, powers and duties” 22 NYCRR [§§ ] 81.1(b)(4), (6) and (8).
DRP–181–2008.
Id.
Accordingly, in compliance with this directive, in any housing court summary proceeding when the action cannot “go forward” the court has one (1) of the following three (3) options: (1) dismiss the proceeding; (2) permit the proceeding to be withdrawn; or (3) adjourn the proceeding. Indeed, “the most faithful reading of the [instant directive]” is that it specifically prohibits housing court staff from marking a case “off calendar.” As the directive is not a limitation on judicial discretion or on a litigant's substantive rights, it is to be followed.
Capitol Records, LLC v. Harrison Greenwich, LLC, 44 Misc.3d 428 (Sup Ct N.Y. County [2014] ).
The only permissible exception to this directive, appears to be in holdover summary proceedings where cases are often marked off calendar pending completion of discovery, see 160 Clare LLC v. Burns, 24 Misc.3d 128(A) (App Term 1st Dept [2009] ) “... petitioner-landlord's eviction claim against the ... respondent ... was marked off calendar ... pending completion of ... discovery ...”
“It does not appear to us that [the] Directives ... were intended to impinge upon substantive rights [and] ... [t]hese directives' ... are not calculated to interfere with the customary discretion accorded to Civil Court Judges [and are therefore, proper]” Kelly St. Block Assn. v. Thompson, 64 A.D.2d 597 (1st Dept [1978] ).
In compliance with this directive, the June 13, 2013, disposition on each file reads: “settled stip[ulation] to be filed.” And to accept the allegations as asserted by the petitioners' counsel that each matter was marked “off-calendar with permission from the court” would be to accept that twice on the same day, the court disregarded its obligation to follow a lawful directive issued by the Deputy Chief Administrative Judge. Clearly, that was not the case, and it is the hope of this court that counsel will be more careful in the future, before falsely accusing the court of willfully disregarding a lawful directive that the court is duty bound to follow.
Benjamin Epstein, Esq., Affirmation, dated March 4, 2014 at ¶ 16.
“[T]he Administrative Judge of the Civil Court of the City of New York, [i]s fully authorized and empowered to administer that court, Kelly St. Block Assn. v. Thompson, 64 A.D.2d 597 (1st Dept [1978] ).
RESTORATION TO THE TRIAL CALENDAR
In support of its motions to restore, petitioner's counsel cites to 22 NYCRR § 208.14 to support its applications. Respondents' counsel argues that “[t]his court should not restore the matter under 22 NYCRR § 208.14....because ... the consolidated holdover proceedings were settled and not merely stricken off the calendar pending settlement.”
22 NYCRR § 208.14, is applicable in housing court proceedings, “[t]he landlord's claim that 22 NYCRR 208.14(d) does not apply to summary proceedings is clearly baseless.... [22 NYCRR 208.14 ] provides that t]his [p]art shall be applicable to all actions and proceedings in the Civil Court of the City of New York, and therefore this provision is applicable to Housing Court proceedings” Centennial Restorations Co. v. Wyatt, 248 A.D.2d 193 (1 Dept [1988] ).
Benjamin Epstein, Esq., Affirmation dated March 4, 2014 at ¶ 22.
Affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 21 (emphasis in original ).
As 22 NYCRR § 208.14 is titled “Calendar default; restoration; dismissal” (sic ) and “... governs calendar defaults, restorations and dismissals” it's applicability to the matters at bar, will be analyzed.
22 NYCRR § 208.14(b) provides that “at any scheduled call of a calendar or at a pretrial conference, if all the parties do not appear and proceed or announce their readiness to proceed immediately ... the judge presiding may note the default on the record and ... grant judgment by default or order an inquest .... dismiss the action .... or strike the action from the calendar.”
The record before this court shows that at the court appearance scheduled for June 13, 2013, all the parties appeared and announced their readiness for trial, and “... the Court [did not] grant a default [nor] order an inquest or dismissal ... [nor did] ... the Court ... strike the case from the calendar. Rather, it appears that, subsequent to announcing their readiness for trial, while awaiting trial assignment, the parties negotiated a potential settlement, returned to the resolution part and informed the judge that the matters were settled. The judge then presiding so endorsed the files. Accordingly, this court cannot conclude that the petitioner was not ready to proceed to trial on June 13, 2013, and respondent's contention that the proceeding must be dismissed and the motions, denied, because petitioner was not ready to proceed to trial on the restored trial date, is not supported by the facts presented.
22 NYCRR 208.14(d) states: “[i]f a restored case is not ready when reached, it shall forthwith be dismissed ...” See also, affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 27.
Moreover, respondents' assertions are inconsistent. Citing Centennial Restorations Co. v. Wyatt (infra) counsel for respondents contends that petitioners' motions should be denied because “notwithstanding ... compliance [with the one (1) year time limit of 22 NYCRR § 208.14(c) ] if the case has been marked off more than once, it may not be restored.” This argument is wholly inconsistent with respondent's contention that the matters were marked “settled” and not “off calendar” and contrary to Civil Court Directive—181.
Affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 27 (emphasis in original ).
Although in her affirmation in opposition dated April 25, 2014, Ms. Anon states “[l]ikewise, the eCourts records annexed as Exhibit 1 reflect that on June 13, 2013 both consolidated proceedings were marked as Off Calendar' “ at ¶ 7, sentence 2 (emphasis in original ), the e-Courts records annexed as exhibit 1 to respondents' affirmation in opposition, show that on June 13, 2014, the cases were marked “settled” and not “off calendar.”
Based upon the foregoing, this court determines that 22 NYCRR § 208.14 does not apply to the instant applications and because petitioner offers no alternate legal basis for restoring these proceedings to an unidentified calendar, it is for the court to determine to which calendar, if any, the matters are to be restored.
Greenburger v. Diether, 10 Misc.3d 21 (App Term 1st Dept [2005] ) as the claims were not “stricken from the calendar .... there is no legal basis for the dismissal of [the] ... claims on the grounds of abandonment .... notwithstanding tenant's delay in prosecuting the counterclaims.”
TRIAL READY CASE DISPOSED OF AS “SETTLED, STIP[ULATION] TO BE FILED”
Although on June 13, 2013, the maters were marked “settled” with a notation that the stipulations will be filed, the terms of the proposed stipulations were not dictated into the record or otherwise memorialized. Accordingly, this court must determine whether petitioner should be precluded from restoring the proceedings to an unspecified court calendar for judicial disposition. Respondents contend that because the parties previously informed the court that the matters were settled, and settlements were not reached, petitioner is preluded from restoring the matters to the calendar, and instead must “bring new actions against [r]espondent[s]....” Respondents cite no law to support that, where settlement negotiations fail at the time of trial, a petitioner must commence a new action seeking the same relief sought in the previous trial ready action, nor has this court found legal support for respondents' contention.
Affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 4.
Indeed, the court notes the “paucity of decisional law addressing change of mind' situations' “ such as exists in the cases at bar. However, in Lopez v. Podgurski, supra, the court was faced with a similar issue, as in the matters at bar. In that case, the plaintiff's attorney informed the court that the trial ready case, was settled. Thereafter, the “plaintiff change [d her] mind ...' “ and decided not to settle. Counsel for the plaintiff then moved to restore the matter and proceed to trial.
Lopez v. Podgurski, 38 Misc.3d 1015 (Sup Ct Suffolk County [2013] ) ; see also, Matter of Kennedy v. Friedlander, 99 A.D.2d 757 ( [2nd Dept 1984] ) “[d]efendant entered into a stipulation setting forth the manner in which his liability would be determined, and his subsequent change of heart' provides an inadequate basis for vacating the stipulation.”
The Lopez, court stated that the following “[t]wo issues are presented on this motion [to restore to the calendar for trial]:
“1. Whether a trial should be restored to the calendar because the plaintiff misunderstood [settlement results] after she accepted the defendant's offer to settle for a sum certain and after [her attorney] notified the court in writing that she accepted the offer? [and]
“2. Whether an attorney's signed letter of settlement to the court binds the client to its terms?”
Id., at 1018.
The judge in Lopez held, that to resolve “these issues, the Court [must] analyze[ ] CPLR § 3404 and § 2104.” Following the sound reasoning of the Lopez court, this court will analyze CPLR § 3404 and § 2104 as each provision may apply to the facts presented.
Id.
In pertinent part, CPLR § 3404 reads as follows: “in a county court [a case] marked off or struck from the calendar or unanswered on a clerk's calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.” The court in Lopez, held “that CPLR [§ ]3404 does not apply [to the facts there presented] because [v]irtually all of the decisional law under [CPLR § 3404 ] involved cases that were struck or marked off the calendar because a party did not appear.”
The CPLR is applicable to the housing part of the civil court, see Civil Court Act § 1001 “Motion practice in the [civil] court ... shall be governed by the CPLR, see also 22 NYCRR § 208.42(d).
Infra.
Similarly, in the motions currently before this court, the matters were marked “settled” with the notation “stip[ulation] to be filed” and not “marked off or struck from the calendar or unanswered on a clerk's calendar call.” Accordingly, CPLR § 3404 is inapplicable to the matters at bar.
CPLR § 2104, states, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed by him (sic ) or his (sic ) attorney or reduced to the form of an order and entered.”
However, unlike the second issue in Lopez, where the plaintiff's attorney informed the court in writing that the case had settled, in the matters before this court, there was no writing submitted, nor were the terms of any proposed settlement written and subscribed, nor reduced to an order of the court nor stated on the record in open court, as required by the statute, to be a binding stipulation.
Although not argued, the court notes that in the instant matters, the notation on the court files that the cases were “settled and stip[ulations were] to be filed” is insufficient to create a binding contract, see, Johnson v. Four G's Truck Rental, 244 A.D.2d 319 (2nd Dept [1997] ) “the notation ... appearing on the Trial Judge's trial calendar, SBT [$]15,000,' does not constitute a sufficient memorialization of the terms of the alleged settlement so as to satisfy ... CPLR [§ ]2104.”
Accordingly, since none of the requirements of CPLR § 2104 are present in the cases currently before the court, the matters are not settled. Therefore, based upon the unique facts, here presented, petitioner is not precluded from restoring the proceedings to the calendar, after anticipating that the cases would be settled, but ultimately a settlement was not be reached.
PRESUMPTION OF ABANDONMENT
Respondents' assert that, “[w]hen [p]etitioner decided post-settlement not to follow through with the settlement reached, he could have decided to return to [c]ourt to seek to return to trial. Instead, [p]etitioner abandoned these cases, ignoring [r]espondents' interim attempts to communicate. Petitioner should now be forced to bring new actions against [r]espondent[s] if he wished (sic ) to resume these actions, and if he is able to state a meritorious, good faith claim for personal use of these properties .”
Affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 4 see also ¶ 27.
Respondents cite no authority to support their position that a petitioner's failure to enter into a written settlement agreement, causes a case to be deemed abandoned, requiring the “[p]etitioner ... to bring new actions against [r]espondent[s] [seeking the same relief].” Nor has this court found any authority to support respondents' contention that there is a presumption of abandonment, where a trial ready case is erroneously removed from the calendar and marked settled. Rather, contrary to respondents' contention the presumption of abandonment applies to matters stricken from the calendar and not restored within one (1) year, and not to matters erroneously marked settled and sought to be restored within nine (9) months of the erroneous disposition.
Indeed, “[b]ecause plaintiff moved to restore the actions more than one year after they were stricken from the calendar, plaintiff was required to demonstrate ... a lack of intent to abandon the action .... and ... a reasonable excuse for the delay in moving to restore the actions....” Fair Price Medical Supply, Inc. v. GEICO Ins. Co., 26 Misc.3d 133(A) (App Term 1st Dept [2010] ).
Contrary to respondent's contention, “courts do not possess the power to dismiss an action for general delay ...” Chase v.. Scavuzzo, 87 N.Y.2d 228 ( [1995] ).
AFFIDAVIT OF MERIT
Restoration to the Trial Calendar
Respondents also argue that because petitioner failed to annex an affidavit of merit to its applications, the motions must be denied. Respondent asserts that “[p]etitioner has failed to meet its burden. .... [as petitioner] has not satisfactorily explained the reasons for the action having been stricken ... [or] show[ed] that it is presently ready for trial.' “ Although this issue was not addressed at the final oral argument, it was raised at the initial oral argument and will therefore, be addressed by this court.
Affirmation of Ada V. Anon, Esq., dated April 25, 2014 at ¶ 22, citing to NYCRR § 202.14(d).
The files before the court show that these consolidated matters were marked “settled” on June 13, 2013. By notice of motion dated March 4, 2014, returnable on March 24, 2014, petitioner sought restoration of these matters. Research results of this court failed to yield support for the contention that following a nine (9) month gap in case activity an affidavit of merit is required before a case, erroneously marked settled, may be restored to an appropriate calendar. To the contrary, where “plaintiff moved to restore the action to the trial calendar more than one [1] year after it was erroneously marked ... settled' and not marked off the calendar pursuant to CPLR [§ ] 3404... the plaintiff was not obligated to demonstrate a reasonable excuse, meritorious action, lack of intent to abandon, and lack of prejudice in order to have the matter restored to the calendar ... the motion [to restore] should have been granted and the matter restored to the trial calendar.”
Counsel for the petitioner states that the reason that the instant motions were commenced (9) months after the June 13, 2013 court date, is because that is the length of time it took the petitioner to obtain a “letter of no objection” from the Department of Buildings for the subject premises. It is not disputed, that a letter of no objection is not a necessary element to petitioner's prima facie case.
Long–Waithe v. Kings Apparel Inc., 10 AD3d 413 (2nd Dept [2004] internal citations omitted ).
While respondent's argument has merit in logic, it is not supported by the law of this state. In the case at bar, nine (9) months elapsed from the time of the erroneous “settled” markings until commencement of the instant motions to restore the cases to the calendar, and more than three (3) years have elapsed since service of the non renewal notices. The passage of such a significant amount of time may result in a change of circumstances, such that the allegation(s) claimed in the predicate notice, (which may have existed, three (3) years ago, which caused the owner to seek possession of the premises for members of his immediate family) may no longer exist.
In line with respondents' attorneys' sound rationale, precedent supports that a “two-year-old non[ ]renewal notice ... is stale, and ineffective” and “a Golub notice becomes stale ... [after] ... 16 months.” However, unlike the matters currently before the court, those cases involved circumstances where a significant amount of time elapsed from the expiration date of the predicate notice, until commencement of the holdover proceeding, and not to pending cases erroneously marked “settled” then sought to be restored to a calendar.
AREP 19 Fifty–Fifth LLC v. McLaughlin, 28 Misc.3d 135(A) (App Term 1st Dept [2010] ).
Raffone v. Schreiber, 18 Misc.3d 925 (Civ Ct N.Y. County [2008] ).
Neither statute nor local rule require, that, to restore a holdover proceeding that was removed from the trial calendar and erroneously marked “settled” an affidavit of merit by an individual with personal knowledge must be submitted to support the application. Therefore, in the exercise of judicial restraint this court declines to impose such an additional requirement.
“... respect for the basic policy of separation of powers and the proper exercise of judicial restraint we will not intrude into the ... affairs of the Legislature” Heimbach v. State of New York, 59 N.Y.2d 891, 893 [1983]appeal dismissed 464 U.S. 956 ( [1983] ).
MOTION PRACTICE
CPLR § 2214(a) requires that a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.”
Each notice of motion submitted herein, seeks “an [o]rder restoring the within holdover action which was marked off calendar June 18, 2013 ... awarding the petitioner a final judgment for all use and occupancy pendent[e] lite which was the motion that was pending before the [c]ourt on June 18, 2013 when the motion and the underlying proceeding were both marked off calendar, and for such other and further relief this court may deem to be just and proper.”
Contrary to petitioner's contentions in each notice of motion, neither proceeding was marked “off calendar” and neither proceeding appeared on the court calendar on “June 18, 2013.” Additionally, petitioner fails to identify an actual calendar to which each proceeding is sought to be restored, or any legal authority to support the application.
“[w]ith regard to plaintiff's Notice of Motion, it is devoid of any reference to a statute upon which plaintiff relies in seeking the requested [relief and] [c]ounsel's [a]ffirmations in support are also devoid of any statute or case authority as a basis for the relief plaintiff seeks .... at least some grounds must be mentioned” Onewest Bank FSB v. Escobar, 46 Misc.3d 587 (Sup Ct Suffolk County [2014] )citing to Shields v. Carbone, 99 AD3d 1100 (3d Dept [2012] ).
Notwithstanding the infirmities in petitioner's notices of motion “[t]he court may grant relief that is warranted pursuant to a general prayer contained in the notice of motion, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party.” Additionally, “... where the wrong ground is designated but other. .... grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice ...” As no prejudice has been demonstrated and it appears that the petitioner seeks restoration of the matters for final determinations on the merits, this court will deem the notices of motion filed herein, to be proper in form.
Shaw v. RPA Associates, LLC, 75 AD3d 634 (2nd Dept [2010] ).
Dean R. Pelton Co. v. Moundsville Shopping Plaza, Inc., 173 A.D.2d 201 (1st Dept [1991] ).
AFFIDAVIT OF MERIT
Use and Occupation
To the extent the petitioner seeks restoration of the instant matters for a hearing to determine use and occupation pendente lite, petitioner has supplied a sufficient affidavit of merit for this relief. The affidavit of Mr. Steinmetz, the petitioner, states that he “verif[ies] the truthfulness, accuracy and veracity of each and every single statement made in my attorney's accompanying affirmation ...” at ¶ 2. His attorney's accompanying affirmation states “[t]he respondent has ... [not] paid a dime for [rent] since November 2011–a full two (2) years and five months!” Benjamin Epstein, Esq., affirmation dated March 4, 2014 at ¶ 20 (emphasis in original ) and “[t]he respondent now owes $19,459.26 in unpaid use and occupancy ...”
Benjamin Epstein, Esq., affirmation dated March 4, 2014 at ¶ 20, et seq. Presumably the sum sought by petitioner represents rental arrears through March 2014, which is the month the affirmation was dated, but the documents submitted to the court fail to specify an exact time period.
As these allegations contained in Mr. Epstein's affirmations were adopted by Mr. Steinmetz in his affidavits, this court finds that the petitioner has submitted sufficient facts, based upon personal knowledge, to support it's pendente lite use and occupation application.
CONCLUSION
Based upon the foregoing, the motions are granted.
“as there is no proof in the record that an enforceable settlement was ever reached, the court improvidently exercised its discretion in denying the plaintiff's motion to restore the case to the trial calendar” Johnson v. Four G's Truck Rental, 244 A.D.2d 319 (2nd Dept [1997] ).
The consolidated matters shall appear on the court calendar on March 19, 2015, at 9:30 in the morning, at Part H, Room 507 and if the cases cannot be settled, on the record or by a signed writing, the matters may be transferred to the expediter and proceed to trial and/or a hearing to determine pendente lite use and occupation.
The foregoing constitutes the decision and order of the court.