Weiner v 27 Prospect Park West Tenant's Corp.
(Supreme Court of the State of New York, New York County 4/5/2012)
We represented: Defendant 27 Prospect Park West Corp.
Hon. Doris Ling-Cohan, J.S.C.
DECISION and ORDER
Plaintiff moves, pursuant to CPLR 3212, for judgment seeking reformation of the allocation of shares in the cooperative apartment where he resides and damages for maintenance overpayments. Defendant cross moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Plaintiff's motion is denied.
Plaintiff's motion is procedurally defective in that it lacks both a notice of motion and a supporting affidavit of a person with knowledge of the facts. The papers include a document that purports to be an affidavit of plaintiff, but it is both unsigned and not notarized. Moreover, the only document submitted in support of the motion is a copy of a share certificate and the first page of what is entitled "Proprietary Lease."
Defendant's motion for summary judgment seeking to dismiss the complaint is granted.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d /.27, 228 (Pt Dept 2006); see Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).
Defendant has met its burden of proof by submitting an affidavit of Jean Isabella, president of defendant's board and a resident in the building or over thirty years, and documentary evidence indicating that plaintiff's allocation of shares is correct. In opposition, plaintiff has only provided an argument signed by his attorney, who lacks any personal knowledge of the matter. Therefore, plaintiff has failed to present any evidentiary facts in admissible form to raise a genuine issue of fact. Moreover, it is not disputed that, plaintiff has lived in the subject building for over 30 years without questioning the number of shares allocated to his apartment and that, he purchased his shares, from a prior shareholder-tenant, on or about April 28, 1975, over 30 years ago; thus, this case is time barred, as a matter of law.
Based on the foregoing, it is hereby
ORDERED that plaintiff's motion is denied as procedurally defective; and it is further
ORDERED that defendant's cross motion is granted and the complaint is dismissed, with costs and disbursements to defendant as taxed by the Clerk of the Court upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that within 30 days of entry of this order, defendant shall serve a copy upon plaintiff, with notice of entry.
Dated: April 2, 2012