Opinion
2021-5 N C
03-10-2022
Jordan Taffet, Appellant, v. Cecilia Vega, Cecilia Vega, Inc. and 49 Surf Road, Inc., Respondents.
Jordan Taffet, appellant pro se. Rosenberg, Calica & Birney LLP (Henry J. Cernitz of counsel), for respondents.
Unpublished Opinion
Jordan Taffet, appellant pro se.
Rosenberg, Calica & Birney LLP (Henry J. Cernitz of counsel), for respondents.
PRESENT:: JERRY GARGUILO, P.J., TIMOTHY S. DRISCOLL, HELEN VOUTSINAS, JJ
Appeal from an order of the District Court of Nassau County, First District (James M. Darcy, J.), entered November 16, 2020. The order denied plaintiff's motion for summary judgment and for sanctions for spoliation of evidence.
ORDERED that so much of the appeal as is from so much of the order as denied the branch of plaintiff's motion seeking summary judgment on liability on his claim for conversion is dismissed as academic (see Livny v Rotella, 305 A.D.2d 377 [2003]); and it is further, ORDERED that the order, insofar as reviewed, is modified by providing that the branch of plaintiff's motion seeking summary judgment on liability for wrongful eviction is granted and by vacating so much of the order as denied the branch of plaintiff's motion seeking sanctions for spoliation of evidence, and the matter is remitted to the District Court for a hearing and a new determination thereafter of the branch of plaintiff's motion seeking sanctions for spoliation of evidence; as so modified, the order, insofar as reviewed, is affirmed, without costs.
In May 2018, plaintiff rented a vacation house on Fire Island from defendant 49 Surf Road, Inc. with the understanding that plaintiff would sublet the house for short stays. Defendant Cecilia Vega, Inc. is a cleaning company hired by plaintiff to clean the house between stays by sublessees. Defendant Cecilia Vega is an individual and the sole shareholder of both 49 Surf Road, Inc. and Cecilia Vega, Inc. On August 10, 2018, after receiving complaints of noise and disturbances caused by plaintiff's sublessees, Ms. Vega changed the locks to the house and called plaintiff after the fact to inform him that she had done so. Plaintiff subsequently commenced this action in Supreme Court, Nassau County, alleging, among other things, that defendants had wrongfully evicted plaintiff and converted his personal property that remained in the house at the time the locks were changed. By order dated November 29, 2018, the action was transferred to the District Court of Nassau County pursuant to CPLR 325 (d).
Plaintiff subsequently moved for, among other things, partial summary judgment on liability on the wrongful eviction and conversion causes of actions and for sanctions for spoliation of evidence. In an order dated November 16, 2020, the District Court (James M. Darcy, J.) denied plaintiff's motion in its entirety. In a subsequent order dated June 22, 2021, insofar as is relevant to this appeal, the District Court granted the branch of defendants' motion seeking to dismiss plaintiff's cause of action for conversion. Therefore, so much of this appeal as is from so much of the November 16, 2020 order as denied the branch of plaintiff's motion for summary judgment on his cause of action for conversion is dismissed as academic, as that cause of action has been dismissed (see Livny v Rotella, 305 A.D.2d 377 [2003]).
Contrary to defendants' argument, plaintiff's motion was not premature, as defendants did not demonstrate that plaintiff's deposition was required in order to oppose the motion (see CPLR 3212 [f]; Cajas-Romero v Ward, 106 A.D.3d 850 [2013]; Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 52 Misc.3d 129 [A], 2016 NY Slip Op 50928[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Ms. Vega testified in a deposition that she changed the locks to the house without notice, a demand for rent, or court involvement after receiving complaints from neighbors about plaintiff's sublessees, establishing plaintiff's prima facie entitlement to partial summary judgment on liability for wrongful eviction (see RPAPL 853; Barash v Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82 [1970]; Hood v Koziej, 140 A.D.3d 563, 565 [2016]). There is no merit to defendants' argument that Ms. Vega's actions were proper because plaintiff was not in physical occupancy of the premises when the locks were changed, as there was no allegation that plaintiff did not have the legal right to occupy the house, and therefore plaintiff may still maintain a cause of action for wrongful eviction (see Lyke v Anderson, 147 A.D.2d 18 [1989]). Defendants failed to raise a triable issue of fact in opposition and, while the alleged noise and disturbances plaintiff's sublessees were causing could be the basis for termination of the tenancy and a holdover proceeding (see RPAPL 711 [2]), they are not a basis for an eviction without a court order.
Finally, the District Court improperly denied the branch of plaintiff's motion seeking sanctions for spoliation without a hearing. As there are factual issues regarding whether plaintiff had an opportunity to inspect the personal property at issue before it was thrown away and as the loss of personal property may still be relevant to plaintiff's remaining causes of action, including wrongful eviction (see Suarez v Axelrod Fingerhut & Dennis, 142 A.D.3d 819, 820 [2016]), the matter must be remitted to the District Court for a new determination, following a hearing, of the branch of plaintiff's motion seeking to impose sanctions against defendants for spoliation (see Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543 [2015]; Richter v BMW of N. Am., LLC, 166 A.D.3d 1029 [2018]; Saeed v City of New York, 156 A.D.3d 735 [2017]; Lentini v Weschler, 120 A.D.3d 1200 [2014]).
Plaintiff made no specific arguments in his initial brief as to why the remaining branches of his motion should have been granted (see Mendoza v Akerman Senterfitt LLP, 128 A.D.3d 480, 483 [2015]; Mehmet v Add2Net, Inc., 66 A.D.3d 437 [2009]). To the extent that plaintiff raises such issues for the first time his reply brief, they are not entitled to consideration (see Duane Morris LLP v Astor Holdings Inc., 61 A.D.3d 418 [2009]).
Accordingly, the order, insofar as reviewed, is modified by providing that the branch of plaintiff's motion seeking summary judgment on liability for wrongful eviction is granted and by vacating so much of the order as denied the branch of plaintiff's motion seeking sanctions for spoliation of evidence, and the matter is remitted to the District Court for a hearing and a new determination thereafter of the branch of plaintiff's motion seeking sanctions for spoliation of evidence.
GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur.