Commercial Litigation
International Plaza Associates, L.P. v. Michael Lacher
(Supreme Court, NY County, 4/14/08)
Corporate veil not allowed to be pierced. Claim of fraud does not contain the essential element of reasonable reliance in the face of written lease that contains an provision requiring any modification to be in writing signed by the landlord. Claim of fraudulent inducement is insufficient as it merely states a claim for breach of contract. Punitive damages are improperly pled in defendant’s counterclaim and third party action.
In the Matter of Leslie Brack and Michael Brack
(New York City Loft Board, January 18, 2007)
Tenants’ application for reconsideration of a Loft Board order finding abandonment of the subject unit was denied where Tenants defaulted without extraordinary circumstances causing their failure to timely answer. Rather, despite four attempts by the Loft Board to get the Tenants to participate in the abandonment proceeding, no answer was ever filed. Tenants’ correspondence demonstrates that they were fully award of the abandonment proceeding. The Board found that, “It appears that [Tenants] chose to gamble repeatedly that they would be able to work out a deal with their landlord before a Loft Board finding of abandonment became a problem for them. They gambled and lost.”
Capogrosso v. Reade Broadway Associates
(Supreme Court, NY County, 12/11/06)
Following trial on commercial tenant's claims that landlord breached the parties’ lease and constructively evicted plaintiff by failing to provide adequate electricity, heat, security and cleaning services, tenant found liable to landlord for $216,075.40 for rent and broker fees, on landlord's counterclaim to recover as damages accelerated rent due under the lease and the damages that allegedly flowed from the breach including legal fees and costs, and matter sent to referee to determine attorneys' fees and costs owing from tenant to landlord. Plaintiff claimed at trial that the electric outlets in the space were inadequate and that the landlord breached its agreement to improve the electrical outlets -- but such was barred by the lease provision which indicates she is not entitled to any setoff or reduction in rent because of the landlord’s failure to comply with the covenant to repair the premises, and, in any event, Plaintiff's testimony about this issue was not credible. Plaintiff was a practicing attorney and her allegation seemed doubtful that she and the landlord would enter into an agreement for the landlord to do electrical work without there being some clear written record of that arrangement. Her allegations were also belied by the work letter attached to the lease. Therefore, absent a specific promise by the landlord to enhance the electrical system to accommodate the amount of equipment plaintiff had, no basis existed to conclude that the landlord breached its obligations under the lease in connection with the provision of electrical service. Plaintiff’s cause of action for constructive eviction based on the landlord’s failure to provide adequate heat and cleaning services could not be maintained because plaintiff did not abandon the premises and continued to use them for their intended purpose until after defendant obtained a judgment awarding it possession. Even after judgment was obtained against her, plaintiff sought and obtained a stay of execution of that judgment of possession and plaintiff remained in the space for over a month paying the landlord use and occupancy. Plaintiff’s request to remain in the space even after the eviction, and her request that her subtenants also be allowed to remain for at least a brief period of time, could hardly be reconciled with her claim that the space was virtually unusable as a law office and unfit for business purposes. Moreover, Plaintiff failed to prove any damages -- she did not provide any proof at trial that she turned work away because she was too busy dealing with the landlord, or that-she would have been able to obtain a sufficient number of clients to fill up all the hours that she allegedly spent on her lease related issues. Plaintiff did not provide any proof that a single client refused to come to her firm, or failed to return because of the conditions in her office. She did not call any witnesses to corroborate that her staff refused to work there, which might have affected her income, or to testify that they called in sick because of the conditions, including the alleged cold, in the office. She did not introduce any contemporaneous time records to document how many hours she spent on these matters and it seemed to the Court that her claim that she spent 80 hours writing or contacting the landlord was based on nothing more than a guess. Nor did plaintiff establish the value of any diminution in her leasehold due to the lack of heat and the poor cleaning services. Although the Court accepted plaintiff’s testimony that there was not someone regularly providing security or signing people in and out of the building, she did not point to any obligation in the lease for the landlord to provide such services. Her suggestion that the downtown location of this building created an implied obligation to provide security, especially after September 11, was unpersuasive and would, if accepted, extend to every landlord in the area. Because landlord prevailed on its counterclaim for unpaid rent it was entitled to its attorney’s fees, costs and disbursements incurred in this proceeding.
30 Broad, LLC v. Charles Lawrence
(12 Misc.3d 1179(A), Supreme Court of the State of New York, New York County, July 10, 2006)
Personal guaranty by defendant of lease does not bind him, as he signed the lease on behalf of his company only, and not on his personal behalf. Reformation based on unilateral mistake requires a showing that the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement. Unilateral mistake involves fraud. The only fraud alleged here is that defendant did not inform plaintiff that the lease, which plaintiff prepared, did not have a place for a guarantor’s signature. Defendant’s conduct, as alleged here, was not fraudulent. The fraudulent inducement cause of action appears to be based on alternative theories: that defendant made a guaranty or that he did not make a guaranty. Plaintiff alleges that defendant induced plaintiff into leasing the premises to tenant by falsely promising to guaranty the lease. Defendant then made the guaranty, but did not perform it. To state a claim of being fraudulently induced to enter a contract, a plaintiff must allege that the misrepresentation was one of then-present fact, which was extraneous to the contract and involved a duty separate from or in addition to that imposed by the contract. An allegation that defendant lied about his or her intention to perform the contract does not state a cause of action for fraud. It states a cause of action for breach of contract. Plaintiff’s pleadings run afoul of all of these principles. Plaintiff alleges no more than that defendant did not intend to perform the guaranty when he made it. Nor does plaintiff state a fraud claim to the extent that it is alleging that defendant did not enter into a guaranty, but that defendant used the promise of entering into a guaranty to induce plaintiff to enter into the lease. An action for fraud will lie if the promisor did not intend to keep his promise when he made it. However, a party may not establish fraudulent intent solely from the non-performance of the future event. The defrauded party must allege specific facts showing that the promisor intended not to honor his obligations at the time the promise was made. The complaint is totally devoid of any such allegations. Neither does equitable or promissory estoppel preclude defendant from invoking the statute of frauds because Defendant’s assertion that he would guaranty the lease is not a false representation of a fact, and the alleged injury, the loss of rent, is not unconscionable. Also, contrary to plaintiff’s argument, the doctrine of part performance does not apply. An agreement that would otherwise be unenforceable, because of the statute of frauds, may become enforceable if the party seeking enforcement has performed part of the agreement. For part performance to bar the defense of the statute of frauds, plaintiff’s actions must be “unequivocally referable” to the agreement alleged. It is not enough that the oral agreement gives significance to plaintiff’s actions. Rather, the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the alleged agreement. Plaintiff’s lease of the space to tenant is not unequivocally referable to the promised guaranty. Defendant is not estopped from raising the statute of frauds.
Cohen v. Utica First Insurance Company
(436 F.Supp.2d 517)
This was a case where we represented the owner of mansion on the North Shore of Long Island whose house burned down about two weeks prior to completion. In the course of suing the general contractor (a case which settled for $2 million dollars) (see Cohen v. Mario Industries), we pursued the insurance company of the painting contractor, which insurance company had denied coverage on the ground that the contractor did not give "timely" notice of the fire to the insurance company. In this decision, the United States District Court, Eastern District of New York, denied the insurance company's motion for summary judgment and ordered the case to trial. After a three day jury trial, the jury came back with a verdict for the home owner after about an hour's deliberation. After the verdict, the insurance company not only agreed to pay the entire amount of the policy, but agreed to pay pre-judgment interest.
Madison Third Building Companies, LLC v. CB Richard Ellis,
Inc.
2006 NY Slip Op 04372 (App Div 1st 2006) June 6, 2006
Supreme Court's order denying motion to dismiss in an action for tortious interference with contract unanimously affirmed. Plaintiff commercial building owner's allegation that defendant's real estate brokers continued to negotiate to obtain space elsewhere for plaintiff's contract lessee, despite their knowledge that there was a fully executed lease already in existence provides fair notice of the necessary "but for" causation between the alleged negotiations and the lessee's alleged breach of lease. Defendants' argument rejected that the allegation of negotiations is conclusory, and that any inference of "but for" causation between the alleged negotiations and breach is speculative, in the absence of details showing when, how and by whom the negotiations were conducted. Defendants' assertion that they stopped negotiating for the other space when they learned of the executed lease merely presents an issue of fact to be decided after joinder of issue.
Bedford Gardens Company, LP v. Silka Sure Hecht Jacobowitz
29 A.D.3d 501 (2nd dept. 2006)
The Supreme Court erred in denying that branch of the motion of Bedford Gardens, a housing company organized under the Mitchell-Lama Law, which was for summary judgment on its cause of action for ejectment. The last tenant of record of the premises was Gilmore. Pursuant to a Housing Court stipulation of settlement Bedford Gardens agreed to permit the defendant Silka Sure Hecht to occupy the premises with Gilmore. Thereafter, Hecht was listed on annual re-certifications for the premises as Gilmore's "friend." At some point, Gilmore vacated the apartment and the defendant Jacob Jacobowitz moved into the apartment. Thereafter, Bedford Gardens advised the defendants that they could not retain possession of the apartment based on their failure to qualify as remaining family members entitled to succession rights. HPD found that the defendants were not remaining family members of Gilmore entitled to succession rights and issued a certificate of eviction against them. The decision informed the defendants that the only review of the determination was pursuant to CPLR article 78. The defendants did not institute a CPLR article 78 proceeding. Bedford Gardens thereafter sent the defendants a "Notice to Quit Licensee" and commenced this action seeking a judgment of ejectment against the defendants. Bedford Gardens moved for summary judgment on its cause of action for ejectment, the Supreme Court denied Bedford Gardens' motion and this appeal was taken. The Supreme Court was reversed and summary judgment granted to Bedford Gardens because HPD is vested with exclusive jurisdiction to determine remaining family-member claims in city-aided Mitchell-Lama housing, and its issuance of a certificate of eviction cannot be collaterally attacked in a subsequent action for ejectment. If the defendants felt aggrieved by HPD's determination, their remedy was to challenge that determination in a CPLR Article 78 proceeding - a step they failed to take.
Epstein v. Samaroo
(Sup. Ct. NY 5/17/06)
Specific performance granted to purchaser in commercial real estate contract after trial. Purchaser's alleged slight tardiness in obtaining the commitment was irrelevant in the absence of a "time is of the essence" clause in the contract and particularly because the contract had no requirement to give the seller notice of issuance of the commitment. And in any event, the commitment was in fact secured in a timely fashion because the clock should run not from when the contract was signed and handed to the purchaser, but it should run from the time it was received in the mail by the purchaser's attorney. And finally, seller loses because the election by the seller to declare the contract void did not occur until after the issuance of the commitment, thus the notice to declare the contract void has no effect.
Epstein v. Samaroo
(Supreme Court of the State of New York, Kings County, June 22, 2007)
In this action for specific performance of a contract fro the sale of real property plaintiff-buyer’s motion to enforce a judgment which ordered the defendant-seller, to complete the contract of sale and convey her interest in the property to the plaintiff-buyer granted. Defendant may not raise an issue as to the purchase price when such price was decided as part of the trial and is now law of the case.
57th Street Day Spa, LLC v. 135 East 57th
Street, LLC
(Sup. Ct. N.Y. Cty. 12/9/05)
Yellowstone injunction denied and tenant's complaint dismissed. Lease required tenant to give defendant a $200,000 letter of credit as a security deposit; gave landlord the right to draw down on the letter of credit; required tenant to keep the letter of credit funded up to $200,000; required tenant to restore any of its proceeds applied by defendant to the payment of rent; and also gave landlord the right to treat tenant's failure to replenish the letter of credit as a default. Tenant withheld $79,088.97 of its rent based upon a claim that an overpayment. Thereafter, landlord drew down the sum of $63,572.48 and applied same to the payment of rent. A notice to cure was served upon tenant's failure to replenish the letter of credit. The relief prayed for in the complaint included a declaration that tenant was not obligated to pay the security deposit restoration as additional rent. Tenant's obligation to replenish the letter of credit, however, was unqualified. Moreover, an estoppel letter precludes tenant's claim of an overpayment where it acknowledged that it was not entitled to any offsets, abatements or deductions against the rent payable under the lease.
Vernon Walden, Inc., v. Lipoid Gmbh, et al.
Slip Copy, 2005 WL 3088333 (D.N.J.)
(United States District Court, D. New Jersey, 11/17/05)
This was a breach of contract and Robinson-Patman anti-trust action brought in Federal Court by a former agent I&H's client, Lipoid GmbH and Lipoid USA, LLC. The major threat in this case was the Robinson-Patman anti-trust cause of action because under Section 4 of the Clayton Act, a prevailing plaintiff is entitled to treble damages. In this particular case, the plaintiff's expert sought to establish that it had suffered injuries to the "violation" of the Robinson-Patman Act in the amount of $1,729,191 or, when trebled, $5,187,573. I&H was able to get the expert's testimony excluded because the expert testimony failed to connect the alleged antitrust damage proofs to sales losses directly to price discrimination. The court also excluded the testimony on the ground that the expert improperly relied upon his client's "speculations" as to sales (and profits) that would have occurred in the absence of the alleged violation. The court held that because the foundation of the expert's opinion was "unreliable", the court found that the "opinion itself is unreliable". Once this decision was issued, which foreclosed the possibility of treble damages on the day before the jury trial was scheduled to commence, the case was settled on favorable terms.
Zapin v. CBS Coverage Group, Inc.
(Sup. Ct. NY 6/8/05)
Partial summary judgment for Defendants on tortious interference with contract or contractual relations claims, which require elements missing here, to wit: the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third party's breach of contract without justification, actual breach and damages. The court held that intentional interference was required, not merely an intrusion that is negligent or incident to some other lawful purpose. Plaintiff attributed Defendant's actions, including her alleged direction to co-defendant to withhold money due to Plaintiff, to a personal animosity that Defendant had toward Plaintiff's principal. But Plaintiff provided no support this accusation. Plaintiff's pleading of prima facie tort was likewise deficient. Plaintiff had advanced no non-speculative basis to believe that additional discovery might yield evidence warranting a different disposition.
Affirmed on appeal:
Zapin v. CBS Coverage Group, Inc.
(26 AD3d 231, 1st Dept. 2006)
Lower court properly denied plaintiff's motion for summary judgment on the breach of contract counterclaims asserted by Emek and Metro. Plaintiff's defense to those claims was that Metro itself breached the contract by abandoning it and ceasing all performance in or about October 2000. In an affidavit made on personal knowledge and supported by documentary evidence, Emek, Metro's president, raises a triable issue of fact on the counterclaims by stating that Metro continued to perform under the contract even after plaintiff allegedly wrongfully terminated it in December 2000. The cross motion for summary judgment dismissing plaintiff's claim against Emek for tortious interference was properly granted. Plaintiff claimed that Emek tortiously interfered with the contract between plaintiff and Metro. But plaintiff never pleaded, nor set forth in its cursory affidavit, facts sufficient to meet the heightened standard of showing that Emek, individually, had acted outside her corporate capacity, maliciously and for personal profit at plaintiff's.
Braun Associates, LLC, V. Madison Third Building Companies,
LLC
(Sup. Ct. NY 5/16/05)
In this action over a substantial broker's fee, plaintiff Broker's motion in limine for an order denying Defendant the right at trial to present to the trier of fact evidence as to the monetary and non-monetary performance of the tenant under the lease is denied. Typically, a tenant's subsequent default had no bearing on the broker's right to collect commission for procuring the lease because commission was earned when the broker produced a tenant who was ready, willing and able to enter into a lease acceptable to the terms of the lessor. But parties to a brokerage agreement may condition payment of commission on the happening of certain other events, such as tenants' actual payment of rent. Defendant argued that it was the "clear understanding of the parties" that a condition precedent to payment of the Broker's commission was the tenant's actual payment of rent. Here, where no written agreement exists and the Broker is pursuing a quantum meruit theory, the parties may submit evidence of conversations, negotiations and agreements made prior to and contemporaneously to the lease for the purpose of determining the intention of the parties as to how commission was to be calculated.
Brocros v. Milling
(Civ. Ct. N.Y. Cty. 3/15/05)
Defendant/Tenant's motion to consolidate this plenary action arising from a landlord-tenant dispute with a summary proceeding pending in Housing Court granted because the two cases arise from the same nucleus of operative facts and share the same witnesses, even where Plaintiff/Landlord claims it will be prejudiced because a summary proceeding pending for two years will be further delayed by consolidation. Moreover, Defendant/Tenant allowed to amend its answer to added causes of action arising out of Landlord's harassment.
145 Park Avenue, L.P. v. IRF/ACORN Group LLC a/k/a RF
Furniture Rentals
(Supreme Court of the State of New York, July 26, 2004)
In an action by a landlord against a former commercial tenant to collect the balance of unpaid rent due under a written lease which was repudiated by the tenant when it vacated the premises prior to the end of the lease term (allegedly due to business hardship occasioned by 9/11), summary judgment granted to landlord for back rent and attorneys fees, where tenant claimed an oral modification in the lease, but such claim was overcome by a lease clause barring oral modifications.
In re The Cassandra Group & Geltzer, as Trustee v. Guy
D'antona
312 B.R. 491 (Bkrtcy.S.D.N.Y., 2004.)
Plaintiff, the trustee in bankruptcy for an investment advisory services
company, brought an adversary bankruptcy proceeding against our client, the
attorney-in-fact for an overseas corporation from whom the debtor had rented an
apartment. Plaintiff sought to avoid several transfers, claiming actual and
constructive fraudulent transfer, and sought to recover the value of the
transactions from the attorney-in-fact. The transfers in question were the
collection and deposit of rents for the apartment leased by the debtor. By
virtue of a power of attorney, the attorney-in-fact managed the apartment,
deposited all rents in his IOLA fiduciary account, and took his attorney's fees
from the same.
The court denied Plaintiff's summary judgment motion, and granted partial
summary judgment to our client, finding that our client, as an agent of his
principal, did not have "dominion and control" over the transferred funds, and
took no benefit from the transactions he carried out for his principal, other
than the legal fees to which he was entitled. The attorney-in-fact was found by
the court to be "an innocent conduit of funds," and not fraudulent transferee
with the power to use the funds for his own purposes. Further, the court found
that our client's payment of his own legal fees from the account in which he
deposited rent for the apartment was on par with a maintenance fee which the
attorney-in-fact, by virtue of the power of attorney, was empowered to effect.
The Court denied Plaintiff's summary judgment motion because Plaintiff did not
show an absence of fair consideration in exchange for the rent payments to the
attorney-in-fact.
W&W Glass Systems v. Cohen Brothers Realty Corp. et al.
(Sup. Ct. N.Y. Cty. 12/12/03)
Defendant building owner and managing agent's motion to dismiss a complaint of a glass contractor granted. The cause of action for breach on contract against the building owner was dismissed because the plain language of the agreement between the parties conditioned payment to the glass contractor-plaintiff on its submission to building owner-defendant of certain documents, including written certification by an architect that the work had been completed, which the contractor never submitted. The cause of action for breach of contract against the managing agent was dismissed because the managing agent was not a party to the contract. The cause of action for unjust enrichment was dismissed because there was a valid contract between the parties, and the existence of a valid and enforceable agreement precludes quasi-contractual recovery. The fourth cause of action to recover under the lien law was dismissed because the notice in question failed to adequately describe the labor supplied pursuant to the agreements between the parties, and the notice also failed to correctly identify the agreed price and value of the labor performed.
Sakele Brothers, LLC v. Pegasus Shipping, Inc.
(Civ. Ct. N.Y. Cty. 12/8/03)
Summary judgment was granted after landlord sought to enforce an acceleration clause under the lease between the parties, when after the September 11, 2001 attacks the tenant abandoned the premises without any notice to the landlord. Tenant claimed solely by an affidavit from the company's president that the space was "completely uninhabitable." The court found that since this assertion was not supported by any concrete description of how and why the space was uninhabitable, nor by any expert evidence, it was insufficient to defeat summary judgment. Further, the court noted that the defendant could not distinguish between the restrictions that were put in place by law enforcement and other public authorities which affected the general public, and acts of the landlord which denied the tenant access to the premises.
Cohen v. Mario Industries
(Sup. Ct. Nassau Cty. 9/30/03)
A party cannot use the procedural mechanism of a subpoena duces tecum to expand permissible discovery under existing law. Accordingly, a trial subpoena which constitutes nothing more than a "fishing expedition" and seeks information which could have been requested in the pre-trial phase of the proceeding should be quashed.
Pavia v. Couri -- a Case Study
The following is a series of over a dozen decisions regarding a case where Itkowitz & Harwood represented a private landlord against an outrageously litigious, Rent Stabilized tenant and won. A December 10, 2006 New York Times article that appeared on the front page of the Sunday Business Section said of this case that, “according to New York housing officials, [this case] is one of the nastiest residential wrangles in recent memory.” These decisions are extremely instructional in persistent and original litigation tactics. They show how a determined litigant (in this case the landlord) can prevail by persevering in a cause he believes is just.
In this case, the premises was an apartment in a beautiful, restored
brownstone on the Upper East Side of Manhattan. The tenant, James C.
Couri, had been the tenant of the apartment since 1996 and was found by DHCR to
be Rent Stabilized. The landlord, George Pavia, also resided in the
building with his family.
Couri was a particularly trying adversary because he is a chronic,
pathological abuser of the legal process. In an action entitled Couri
v. Cristiano, New York Supreme Court, in an affirmation of Thomas M.
Mullaney, Esq. in support of a motion, annexed was an investigator’s report,
which stated that an investigation of New York, Kings and Westchester County
court records revealed that: Couri has 157 separately indexed cases to which he
is a party, in the vast majority of which he is a plaintiff pro-se; that Couri
has a long history of making fantastic, unsubstantiated allegations of horrible
wrongdoings against his adversaries; that Couri has made a habit of suing
opposing counsel; and that he has left behind him a trail of twenty years worth
of landlord and tenant disputes, spanning approximately eight different cases.
The New York Times reported (above) that, “A reporter’s search of a legal
database turned up nearly 150 cases in which mr. Couri was named as a party –
most often as a plaintiff – since 1972.” Pavia’s son conducted an
independent investigation and unearthed over 80 such cases by Couri.
Couri’s papers in this case were filled with absurd statements about Pavia, a
respected member of the Bar in this State for over 50 years and a senior partner
of the highly regarded international law firm of Pavia and Harcourt. This firm
urged the Court to keep in mind that Couri plead guilty in Federal Court to
fraud. As set forth in the case of Drobbin v. Nicolet Instrument Corp.
et al., 631 F.Supp 860, 868, United States District Judge Haight described
Couri, as follows:
“Couri has a checkered past. He has twice pleaded guilty in this Court to
charges of fraud. One charge involved securities fraud. The other involved
fraudulent statements made to a bank in connection with an art gallery Couri
controlled. Couri is the subject of an injunction against securities laws
violations obtained by the Securities and Exchange Commission.”
Moreover, the case was challenging because there was no precedent for a
nuisance case based on the grounds present here. At the outset of this
litigation Couri was represented by the highly regarded firm of Rosenberg &
Estis. A partner there advised this firm that there was no way Couri would
be evicted on the grounds complained of.. no one ever had.
Ultimately, however, this office prevailed in all decisions included below,
and Pavia won the case. After the trial of the matter, a judgment for
possession of the apartment and a money judgment for back rent were ultimately
awarded against Couri.
Pavia v. Couri (Sup. Ct. N.Y. Cty. 9/29/03)
Tenant's motion to direct repairs denied, where tenant did not allege that
any repairs were needed in the tenant's answer or counterclaims. Tenant not
entitled to injunctive relief which grants the ultimate relief sought in
tenant's counterclaims. There are no grounds for directing landlord to undergo a
mental examination, where the landlord's medical or mental condition is not in
controversy in the case, and where tenant supports his claims with only
conclusory allegations instead of with affidavits containing facts. A motion to
dismiss is not properly granted where issue has been joined.
Pavia v. Couri (Sup. Ct. NY Cty. 1/30/04)
Landlord allowed to amend complaint to add a cause of action seeking
ejectment on the grounds of nusiance. Tenant's motion to have
Plaintiff/Landlord's attorney of choice disqualified denied.
Pavia v. Couri (Sup. Ct. NY Cty. 6/28/04)
Defendant/Tenant's motion for summary judgment denied where Defendant/Tenant
merely reciting his version of the facts to the court, rather than establishing
his entitlement to a defense as a matter of law. Issues of credibility may not
be decided on a motion for summary judgment. Moreover, Defendant/Tenant unable
to establish that Plaintiffs, as the owners of the Building, were not entitled
to a set of keys for Defendants' apartment. With respect to the ejectment claim
based on nuisance, Defendant/Tenant's denial of the underlying conduct does not
entitle him to summary judgment since Plaintiff's affidavit is sufficient to
raise a triable issue of fact.
Pavia v. Couri (Sup. Ct. NY Cty. 7/12/04)
Defendant/Tenant must deposit all back use and occupancy and ongoing use and
occupancy, even though Plaintiff/Landlord refuses to issue Defendant/Tenant a
rent stabilized lease where Plaintiff/Landlord maintains the tenancy has been
terminated and Defendant/Tenant not entitled to a lease. Defendant/Tenant has
not suffered a decrease in services that would warrant denying use and occupancy
or reducing the amount of the legally regulated rent.
Couri v. Pavia (Sup. Ct. N.Y. Cty. 2/8/05)
[This is the same case as Pavia v. Couri, above]
Plaintiff/Tenant's causes of action for abuse of process, malicious
prosecution arising out of a DHCR proceeding, prima facie tort, false arrest,
libel and slander, defamation, intentional infliction of emotional distress, and
harassment dismissed for failure to state a claim. Also, Plaintiff/Tenant's
motion for to enjoin Defendant/Landlord from filing suit and imposing other
prior restraints on speech denied. Plaintiff/Tenant's motion to have
Defendant/Landlord's attorney of choice disqualified is denied (again).
Pavia v. Couri (Sup. Ct. N.Y. Cty. 2/9/05)
Defendant/Tenant's motion -- to reduce the rent on his apartment in
accordance with an order of the DHCR; to stay the collection of use and
occupancy and the effect of the court's July 12, 2004 decision and order; and to
direct a reduction in rents based on the issuance of certain notices of
violation by the Department of Buildings regarding a greenhouse at the Building
-- is denied. The court stood by its July 12, 2004 order [see above], and found
that such Department of Buildings notices alone are not sufficient to relieve
Defendant/Tenant from payment of use and occupancy at the legal rate as set by
the DHCR, particularly as Defendant/Tenant continued to reside at the Apartment.
Pavia v. Couri (Appellate Division, 1st Dept. 4/14/05)
Defendant/Tenant's motion to the Appellate Division for a stay pending the
appeal of the lower court's July 12, 2004 and February 9, 2005 orders [see both
above] - denied; and sua sponte (without Plaintiff/Landlord even
bothering to ask for such relief) the appeals of those orders are dismissed.
Pavia v. Couri (Sup. Ct. N.Y. Cty. 4/29/05)
[This is the same case as Pavia v. Couri, above]
Plaintiff/Tenant's motion for the Court to recuse herself denied. The Court
did not restrict motion practice, which was obviously plentiful;
Plaintiff/Tenant was obviously dissatisfied with the February 8, 2005 decision
[SEE ABOVE], which was based on applicable legal authority and thus this motion
is Plaintiff/Tenant's attempt to forum shop; and the Court never ignored
Plaintiff/Tenant's letters but instructed him to seek formal relief.
Plaintiff/Tenant not entitled to summary judgment. As the Court denied several
applications regarding the Court's order that Plaintiff/Tenant deposit use and
occupancy with the Clerk of the Court, any further challenges to such orders
must be made by appeal.
Couri v. Pavia (Sup. Ct. N.Y. Cty. 8/12/05)
[This is the same case as Pavia v. Couri, above]
Plaintiff/Tenant's motion to compel a further deposition of
Defendant/Landlord denied where Tenant waived his right to ask further questions
by ending the deposition early. Moreover, Tenant's motions to strike Landlord's
answer, preclude certain evidence, and for costs and sanctions denied.
Couri v. Pavia (Sup. Ct. N.Y. Cty. 8/12/05)
[This is the same case as Pavia v. Couri, above]
Defendant/Landlord's motion to hold Plaintiff/Tenant in contempt for failure to
obey the court's February 9, 2005 order that Tenant pay use and occupancy [see
above] granted to the extent of setting the matter down for a hearing on the
sole issue of whether Tenant's recent illness prevented him from complying with
the order. Tenant's lengthy cross-motion denied because many of Tenant's
requests for relief in the cross-motion had been made repeatedly throughout the
litigation and had been repeatedly denied by the court. Tenant's request that
payments for use and occupancy be paid into an escrow account denied. Tenant's
request that the Landlord provide a "notice for rent arrears" in accordance with
RPAPL 711 and 735 denied, as these statutory requirements apply to summary
proceedings, and not to this plenary action. Tenant's motion to preclude
Landlord from introducing evidence to support its claim concerning a leak or
Tenant's nuisance denied because there is no basis for such preclusion.
Pavia v. Couri (Sup. Ct. N.Y. Cty. 8/25/05)
Plaintiff/Landlord's motion granted for an order directing future use and
occupancy to be paid directly to Landlord.
Pavia v. Couri (Sup. Ct. N.Y. Cty. 8/26/05)
Defendant/Tenant did not submit competent medical evidence to support his
request for a stay of trial based on his alleged medical condition where he
submitted random and unexplained documents regarding his medical condition
and treatment. Defendant/Tenant's motion for the court to recuse itself was
denied (again). Defendant/Tenant essentially argued that a court may not
require competent medical proof from a litigant to stop a trial based on his
medical condition. The extensive record in this case belied his allegations.
Moreover, medically competent evidence is particularly significant where, as
here, a jury has been selected, and where Defendant/Tenant's treating
cardiologist has stated that he could go forward within 24 to 48 hours of
his recent discharge form the hospital. Defendant/Tenant's latest motion for
recusal was not only without merit, but appeared to be nothing more than
forum shopping.
Pavia v. Couri
(Sup. Ct. N.Y. Cty. 12/18/06)
Court directed all parties to stop communicating with it via telephone calls,
facsimiles or letters, due to Defendant Couri’s voluminous faxes and letters to
Court and his numerous messages on chamber's answering machine, despite being
previously ordered not to do these things.
Pavia v. Couri (Sup. Ct. N.Y. Cty. 2/7/07)
In an effort to get the case to trial without further delay, the Court
ordered Defendant Couri to: produce HIPPA compliant authorizations to plaintiffs
for the four physicians whose affirmations he submitted when seeking an
adjournment of the trial and to provide proof of compliance; submit written
questions to be asked at the hearing by the attorney for Couri's wife, in the
event that Couri is unable to attend the trial; and submit certified copies of
his medical records. A contempt hearing concerning Couri was scheduled. The
Court includes the transcript of shocking and threatening phone message left on
her chamber’s voice mail.
Devlin v. Knowles (Surrogate's Ct. Kings Cty. 9/27/03)
In this Surrogate's Court proceeding to turn over a grant of real property,
petitioner's lis pendens was canceled where the summons in the proceeding was
not served within 30 days of the filing of the lis pendens. In response to
having the lis pendens cancelled, the petitioner moved to enjoin the respondent
from selling, mortgaging, assigning, or encumbering the premises. Their motion
was denied.
Devlin v. Knowles, Ameriquest, Citibank (Surrogates Court, Kings County, 2/7/07)
In this miscellaneous proceeding, Petitioner, the Executor of the estate of
Mildred Strand, commenced a turnover proceeding to transfer the real property
located at 111 East 3rd Street, Brooklyn, New York, which had been partially
transferred, prior to her death, to her grandson, David Knowles, on the grounds
of undue influence and lack of testamentary capacity. Ameriquest and Citibank
were mortgagees on the premises and were named as respondents. The Court found
for Respondent Knowles, even though it found that Petitioner proved that Knowles
had a confidential relationship with the decedent. The decedent was elderly and
infirm; respondent was responsible for all of the decedent's affairs, financial,
emotional and physical. There was a substantial change from the will, in that
the prior will left the bulk of the estate to the Petitioner and the inter vivos
transfer of the main asset of the estate to the Respondent-grandson
substantially changed the disposition of the decedent's assets. Petitioner made
a prima facie case of undue influence through circumstantial evidence and the
burden then shifted to Respondent to explain by clear and convincing evidence
why the above listed factors did not lead inescapably to a conclusion of undue
influence. Respondent amply met the burden of proving lack of undue influence.
Respondent was a godson and a grandchild of the decedent who lived with her for
thirty years and who took care of all the decedent's affairs for many years
prior to her death. Despite the fact that he recently got married and was
difficult for him to do so, Respondent took care of all of decedent's needs,
picking up medicine, stocking the house with food, collecting rental income,
paying all of her bills, dealing with the home health care agencies, doctors,
applying for home care, and visiting her in the hospital. The Court acknowledged
that Respondent did an admirable job of taking care of the decedent under tough
circumstances. The Court contrasted this action with that of the petitioner,
who, when the decedent contacted her that she was in need of help and requested
that she take care of her on the weekends, she refused, and who abruptly cut off
all relations with the decedent for at least three years until decedent's death.
Petitioner's claims regarding the alleged improper acknowledgment of the deed
were equally without merit.
Aievoli v. Spitale (Sup. Ct. Kings Cty. 4/28/03)
Court granted defendant's motion for an order dismissing an action and to
cancel notice of pendency for failure to timely serve the summons and complaint
within 30 days of filing the notice of pendency. Court also granted defendant's
motion for an order to dismiss the complaint and cancel notice of pendency on
the grounds that the action was barred by collateral estoppel, failed to state a
cause of action, and the court lacked personal jurisdiction over the defendant.
Decorative Center of Houston, L.P. v. Direct Response
Publications, Inc. (S.D.Tex. 6/12/02)
Defendant, a publishing company, had agreed to publish four annual
directories of tenants in common trade in commercial building owned by
plaintiff. After two years, parties entered into a Termination Agreement and
plaintiff paid defendant as consideration for defendant's agreement not to
publish the remaining two directories. Defendant then solicited plaintiff's
tenants for inclusion in a separate trade directory. Plaintiff filed a claim
against defendant, alleging that defendant's solicitation was false advertising
and that by soliciting tenants, defendant had breached Termination Agreement.
Court ruled that nothing in defendant's solicitation was false and that
defendant had disclosed that it was seeking information for its own publication
and not for the plaintiff's publication. Court also ruled that defendants could
not be said to have broken Termination Agreement because of ambiguity of
Agreement.
Perkins v. Division of Housing and Community Renewal and
Orion Realty et al. (298 AD2d 588, 2nd Dept. 2002)
Filing of an overcharge complaint in 1991, based on the late filing of a 1984
registration statement was untimely. The Rent Regulation Reform Act of 1997 did
not deprive Tenant of due process when it imposed a four-year statute of
limitations on overcharge complaints.
European American Bank v. Three Park Ave. Building Co. (Sup. Ct. N.Y. Cty. 10/3/00)
Court held that plaintiff, a bank, was not entitled to recover from defendant
any portion of a letter of credit it had issued to a third party (not named in
suit) but had made payable to defendant. Third party alone was liable for the
amount drawn down from letter of credit. Defendant awarded costs and
disbursements.
Betancur, etal. v. The City Of New York (Supreme Court, NY County, October 8, 1999)
In this personal injury action, plaintiffs, EMTs employed by NYC Emergency
Medical Services, sought to recover for personal injuries sustained when they
were allegedly attacked by NYC Department of Correction officers demonstrating
at and blocking access to a bridge leading to Rikers Island. Plaintiffs sought
permission to depose the Commissioner of the NYC Department of Correction and
the Chief of Department of DOC at the time the incident allegedly occurred.
Defendant the City of New York cross-moved for a protective order precluding the
depositions. Plaintiff's motion was granted and the depositions were allowed.
Betancur v. City of New York (Sup. Ct. N.Y. Cty. 5/5/03)
In this personal injury action, plaintiffs, EMTs employed by NYC Emergency
Medical Services, sought to recover for personal injuries sustained when they
were allegedly attacked by NYC Department of Correction officers demonstrating
at and blocking access to a bridge leading to Rikers Island. After finding that
the defendants assumed a special duty towards the plaintiffs based on such facts
as the presence of police officers in riot gear, plaintiffs' emergency response
to a distress call to provide medical assistance after two other EMTs were
attacked in the Rikers parking lot, and a plaintiff-EMT's request for police
backup after that distress call, the court denied the defendant's motion for
summary judgment seeking dismissal of the complaint.
622 Building Company, LLC v. Empire Blue Cross and Blue Shield (Sup. Ct. NY Cty. 12/29/99)
In commercial lease dispute, the plaintiff/landlord's motion for summary
judgment and to dismiss defendant’s affirmative defenses and counterclaims
partially granted where the sole issue before the court was whether landlord
improperly denied tenant's request to move out of the building using the freight
elevator during business hours. The lease gives plaintiff the right to limit
tenant’s ability to move out of the building during regular business hours. The
right is reserved in the Rules and Regulations appended to the lease.
Limitations on the use of the freight elevator are explicitly set forth in
writing in the Building Manual. Though tenant asserts that it did not “sign” or
“agree to” the Building Manual, that assertion is irrelevant. The landlord
reserves the right in the lease to promulgate “reasonable” rules concerning the
operation of the building and those rules are binding upon tenants so long as
they are communicated in writing. The Building Manual constitutes such a written
communication. Tenant’s employees’ signatures on nearly 80 invoices approving
after hours costs associated with the move, and the unrebutted fact that tenant
incurred, and paid for, after hours costs during the course of its tenancy prior
to initiating its move, are further evidence that the after hours policy was
well-known to tenant. Tenant's argument that landlord’s alleged breaches of the
lease excuses tenant’s non-payment of additional rent, ignores the fact that
this case involves a lease and the non-payment of rent and a landlord’s breach
of a covenant in the lease is independent of a tenant’s covenant to pay rent and
does not exonerate tenant’s refusal or failure to pay rent. Moreover, there was
no duress against tenant; it is not duress to threaten to take action which is
legally permissible. Finally, the no-counterclaim clause in the lease was
upheld against tenant.
Enrico & Sons Contracting v. Bridgemarket Associates 252 A.D.2d 429, 675 N.Y.S.2d 351 (1st Dept 1998)
Appellate Division reversed grant of summary judgment to concrete contractor
and affirmed defendant landlord's amendment of pleadings to include a
counterclaim in the nature of recoupment for defective work.
111-115 Broadway Limited Partnership v. Minter & Gay, etc.,
et al. 255 A.D.2d 192, 680 N.Y.S.2d 12 (1st Dept 1998)
Dissolution of a partnership did not render it unamenable to an instant
action seeking to determine the extent, if any, of the partnership's outstanding
rent obligation under a lease; notwithstanding its dissolution, the partnership
continued to exist for the purpose of winding up its affairs, including the
dispute respecting rent.
Maria B. v. Joseph F. 26 Family Law Review 2 (June 1994) p.26
Court entered an order of filiation against respondent father despite
petitioner mother's 16-year delay in bringing paternity proceedings.
The following is the support hearing for the above trial:
Maria B. v. Joseph F. 26 Family Law Review 2 (June 1994) p.26
Court ruled in favor of petitioner, issuing $27,637.00 in attorneys' fees.
In re Arts des Provinces de France, Inc. 153 B.R. 144 (Bankr. S.D.N.Y. 1993)
In this Chapter 11 bankruptcy case, creditor was permitted to file late
notice of claim because debtor had improperly served bar date notice.
Corbel Construction v. Bridgemarket Associates 1/4/90 N.Y.L.J. p.21 (Sup. Ct. N.Y. Cty.)
Court held that prior to suing individual partners of a partnership for the
obligations of the partnership, the plaintiff was required to sue the
partnership and allege that the partnership is insolvent or that the partnership
property is insufficient to pay partnership debts and there is no effective
remedy without resort to individual property.
Genn v. Schwarz 138 Misc.2d 154, 523 N.Y.S.2d 937 (Sup. Ct. N.Y. Cty. 1987)
Court determined that the City violated the rights of a former assistant
corporation counsel by failing to properly calculate terminal leave benefits.
Court subsequently determined that the employee was also entitled to interest on
the amount due.
Gershowitz v. Gershowitz 112 A.D.2d 67, 491 N.Y.S.2d 356 (1st Dept. 1985)
Appellate Division granted father's request to enjoin former wife from
changing their child's surname in violation of parties' separation agreement and
judgment of divorce.
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Local 2507 v. Health and Hospitals Corporation (Sup. Ct. N.Y. Cty. 1/31/85)
Over New York City's assertion that union has conflict of interest, court
determined that municipal labor union was permitted to represent all its members
in connection with the demotion, promotion and appointment of certain individual
members, because any perceived conflict was remedied by notice to and joinder of
all members.
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on the link below:
Hoffman v. Sierra Club (Sup. Ct. N.Y. Cty. 5/29/85)
Court rejected challenge to the election of certain members to the Board of
Governance of the Atlantic Chapter of the Sierra Club on the grounds that the
challenge failed to demonstrate fraud or wrongdoing or that standards of fair
dealing require the court to order a new election.
Engstrom v. Kerr 113 A.D.2d 866, 493 N.Y.S.2d 597 (2d Dept. 1985)
Appellate Division voided termination of paramedic because City did not allow
employee to return to probationary position as a provisional emergency medical
technician.
Adams v. Dinkins (Sup. Ct. N.Y. Cty. 10/20/83)
Petitioner, suing for divorce from husband who was defending that action on
the ground that he had never legally married petitioner, sought order directing
respondent David Dinkins (then City Clerk of the City of New York) to issue
certificate of marriage so that divorce could proceed. Respondent argued that no
order of mandamus could be issued since petitioner had been married without
marriage license and by clergyman not registered with City Clerk's office; in
addition, petitioner had not documented a previous divorce. Court ruled that
lack of license and clergy registration were not necessarily a bar to issuance
of marriage certificate, and that with inclusion of certified copies of previous
divorce, petition could be renewed. Dinkins filed a notice of appeal and then
decided to withdraw it. The case settled with the City issuing a marriage
certificate, which then allowed the petitioner to seek a divorce with the
property rights of a spouse in Boston, Massachusetts.
Eastwood Building Committee of Roosevelt Island v. Berman 118 Misc.2d 494, 461 N.Y.S.2d 184 (Sup. Ct. N.Y. Cty. 1983)
Court upheld challenge by tenants to rent increase promulgated by the State
Division of Housing and Community renewal on the ground that the State agency
had failed to comply with its published rules and regulations governing the
issuance of rent increases for state-subsidized housing.
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