Opinion
10-19-2017
Martin STONER, Plaintiff–Appellant, v. ATLANTIC REALTY APTS., LLC, et al., Defendants–Respondents.
Martin Stoner, appellant pro se. Horing, Welikson & Rosen, P.C., Williston Park (Jillian N. Bittner of counsel), for Atlantic Realty Apts., LLC, respondent. Mark F. Palomino, New York (Jeffrey G. Kelly of counsel), for The New York State Division of Housing and Community Renewal, respondent.
Martin Stoner, appellant pro se.
Horing, Welikson & Rosen, P.C., Williston Park (Jillian N. Bittner of counsel), for Atlantic Realty Apts., LLC, respondent.
Mark F. Palomino, New York (Jeffrey G. Kelly of counsel), for The New York State Division of Housing and Community Renewal, respondent.
The motion court correctly granted the cross motions to dismiss the amended complaint, because plaintiff failed to exhaust his administrative remedies (see Town of Oyster Bay v. Kirkland, 19 N.Y.3d 1035, 1038, 954 N.Y.S.2d 769, 978 N.E.2d 1237 [2012], cert. denied 568 U.S. 1213, 133 S.Ct. 1502, 185 L.Ed.2d 550 [2013] ). Moreover, the amended complaint did not seek any relief against defendant the New York State Division of Housing and Community Renewal (DHCR).
The motion court correctly denied plaintiff's motion for injunctive relief because he failed to show a probability of success on the merits, the danger of irreparable injury, and a balance of equities in his favor (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ).
The motion court providently exercised its discretion in denying plaintiff leave to amend the amended complaint to assert a claim under 42 U.S.C. § 1983 against Woody Pascal, a DHCR official. The proposed claim is "palpably insufficient" as a matter of law ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 901 N.Y.S.2d 522 [1st Dept.2010] ), since neither a state nor its officials acting in their official capacities, such as Pascal, are "person [s]" within the meaning of 42 U.S.C. § 1983 (see Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 [1989] ).
Plaintiff's motion for renewal was properly denied because he failed to present a reasonable excuse for not presenting the new facts on the prior motion and he failed to show that the new facts would have changed the prior determination (see CPLR 2221[e][2], [3] ; American Audio Serv. Bur. Inc. v. AT & T Corp., 33 A.D.3d 473, 476, 823 N.Y.S.2d 25 [1st Dept.2006], appeal dismissed 2007 N.Y.App.Div. LEXIS 5367 [2007] ).
No appeal lies from the denial of plaintiff's motion to reargue (see Lopez v. Post Mgt. LLC, 68 A.D.3d 671, 890 N.Y.S.2d 827 [1st Dept.2009] ).
We have considered plaintiff's remaining arguments, including his request for sanctions, and find them unavailing. MANZANET–DANIELS, J.P., MAZZARELLI, MOSKOWITZ, KAHN, and KERN, JJ., concur.