Gideon v 257 Central Park West, Inc. 2015 NY Slip Op 30142(U) January 16, 2015 Supreme Court, New York County Docket Number: 107814/10 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART /(6 Justice -V• MOTION DATE ____ 2 S7 c_..~"""c. ~11:. ~11r, /,.,c. MOTION SEQ. NO. 0 Y / ti! 1A <· The following papers, numbered 1 to _l__, were read on this motion tolfflf ~~.$ t?#of!flr1M 0 Notice of Motion/Order to Show Cause -Affidavits - Exhibits flUI&•~~o(s) .. __,__ _ Answering Affidavits- Exhibits _______________ INo(s). __2-__ _ Replying Affidavits __________________ I No(s). __3__ _ Upon the foregoing papers, it is ordered that~ : '[W {A}W't (J~.5 f ":'M'ff :S MCf1<1>1 tv ~ IM.s trppoBl.P~ 1» ~s' ~'flt}")> ~ ~~~ (>1"1"~ to f1A.f ~16' kdg1tm. w u ::::>ti e"") Q w a:: a:: w w ""a:: .. >- _, z~ ::::> 0 .... c( Ow"" "' f \LED w a:: 9; Cl wz JAN 2 2 20\5 a:: i w~o _, "' _, CLERK'S QfF\CE c( 0 couN~EW '{ORK ~ w z ::c"" 0 .... j:: a:: Oo :E "" Dated: I,,,/ •5" LUCY BILLINGS 1. CHECK ONE:..................................................................... 0 CASE DISPOSED gNoN-FINAL DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: ~GRANTED 0 DENIED· 0 GRANTED IN PART 0 OTHER 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER 0 SUBMIT ORDER ODO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] $UPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ---------------------------------------x GIDEON ABRAHAM, Index No. 107814/2010 Plaintiff - against - DECISION AND ORDER 257 CENTRAL PARK WEST, INC., BOARD OF DIRECTORS OF 257 CENTRAL PARK WEST, INC., and RUDD REALTY MANAGEMENT CORP., Defendants FILED ---------------------------------------x JAN 2 2 2015 LUCY BILLINGS, J.S.C.: COUNTY CLERK'S OFFICE I . BACKGROUND NEW YORK This action by plaintiff shareholder in a residential cooperative building against defendant cooperative corporation and its board of directors and managing agent for the building includes seven claims for relief. Plaintiff seeks (1) an accounting from the cooperative corporation, 257 Central Park West, Inc., of all debits and credits he owes and is owed; (2) an injunction against termination of his parking space in the building's garage; and (3) an injunction against termination of his proprietary lease and against his eviction as long as he timely pays the charges due. He further claims (4) an assault by defendants' building superintendent, who is not a defendant, and discriminatory harassment by defendants and (5) defamation by defendants falsely charging plaintiff with wrongdoing. (6) He seeks a further injunction compelling defendants to terminate the building superintendent and managing agent, who have been the abraham.163 1 [* 3] •source of plaintiff's disputes with defendants and participants in the assault, harassment, and defamation. (7) Finally, he interposes a separate claim for punitive as well as compensatory damages. In support of the assaultive and defamatory conduct, plaintiff testified at his deposition that the superintendent orally harassed him as well as other shareholders of the cooperative building on several occasions, denied entrance into the building to plaintiff and movers of a mattress for his apartment, and assaulted plaintiff by closing the entrance door on him. Aff. of Brett L. Carrick Ex. L, at 21-24. His complaint specifically alleges that, in response to his letter to the building residents detailing the superintendent's abusive behavior against plaintiff, defendants disseminated a letter to the shareholders falsely stating that a videotape showed it was plaintiff who orally abused and physically assaulted the superintendent. Carrick Aff. Ex. A ~~ 14-15. Plaintiff also claims defendants falsely accused him of illegally subletting his apartment, billed plaintiff for charges he did not owe, and terminated his parking space without grounds, all undertaken as a pretext to terminate his proprietary lease. Defendants move for summary judgment. C.P.L.R. § 3212(b). They maintain that res judicata bars plaintiff's claims, relying on a judgment against plaintiff in their holdover proceeding to recover the parking space; that an injunction against terminating his proprietary lease is not ripe, as they have not commenced any 2 [* 4] such termination; and that the alleged assault and defamation did not cause plaintiff any damages. Pursuant to the parties' stipulation dated December 5, 2013, plaintiff voluntarily discontinued his second claim, for an injunction against termination of his parking space. He moves to supplement the record with defendants' notice to cure to him dated June 2, 2014, however, in opposition to summary judgment dismissing his third claim. II. SUMMARY JUDGMENT STANDARDS Defendants, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Only if defendants satisfy this standard, does the burden shift to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). If defendants fail to meet their initial burden, the court must deny summary judgment despite any insufficiency in the opposition. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; JMD Holding Corp. v. Congress Fin. Corp, 4 N.Y.3d at 384; Scafe v. Schindler El. Corp., 111 A.D.3d 556, 557 abraham.163 3 [* 5] (1st Dep't 2013); Williams v. New York City Hous. Auth., 99 A.D.3d 613 (1st Dep't 2012). If upon defendants' prima facie showing the opposition fails to raise material factual issues, however, the court must grant defendants summary judgment. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Morales v. D & A Food Serv., 10 N.Y.3d at 913; Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 A.D.3d 507, 508 (1st Dep't 2012). In evaluating the evidence for purposes of defendants' motion, the court construes the evidence in the light most favorable to plaintiff. Vega v. Restani Constr. Corp., 18 N.Y.3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004). III. PLAINTIFF'S THIRD CLAIM, FOR AN INJUNCTION AGAINST TERMINATION OF HIS LEASE A. Plaintiff's Supplemental Evidence Plaintiff insists that defendants' notice to cure dated June 2, 2014, offered to supplement his opposition to summary judgment, demonstrates their campaign to terminate his proprietary lease and to evict him from his cooperative apartment and rebuts defendants' defense to his third claim: that defendants have not taken any steps toward terminating his lease. The court may permit supplemental evidence sparingly, to clarify or elaborate on a limited issue, but not as a vehicle to add points not originally raised by plaintiff's opposition or to add a new theory of recovery not pleaded in the complaint. Ostrov v. Rozbruch, 91 A.D.3d 147, 153-44 (1st Dep't 2012). See Colon v. Torres, 106 A.D.3d 458, 458 (1st Dep't 2013); Tierney v. Girardi, 4 [* 6] 86 A.D.3d 447, 448 (1st Dep't 2011); Ashton v. D.O.C.S. Continuum Med. Group, 68 A.D.3d 613, 614 (1st Dep't 2009). The complaint bases plaintiff's claim for an injunction against terminating his proprietary lease and evicting him, as long as he pays charges due, on defendants' alleged fabrication of pretexts to terminate his lease, including their holdover proceeding to recover his parking space. His opposition to summary judgment expresses his fear of their future attempt to terminate his proprietary lease in retaliation for him commencing this action. Although his supplemental evidence does show that defendants now have taken a step toward terminating his lease, the evidence does not show either their fabrication of a pretext or their retaliation. Nor does the evidence correct any deficiency in his original opposition, as defendants had not sent the June 2014 notice to cure when plaintiff commenced this action or even when plaintiff originally opposed the summary judgment motion. Colon v. Torres, 106 A.D.3d at 458; Ostrov v. Rozbruch, 91 A.D.3d at 155; Ashton v. D.O.C.S. Continuum Med. Group, 68 A.D.3d at 614. More importantly, even if the court considers the notice to cure as manifesting defendants' intention to terminate plaintiff's proprietary lease, the termination is based only on his failure to pay additional rent: the judgment for attorneys' fees and expenses awarded to defendants in the holdover proceeding regarding the parking space. Thus, when the court considers plaintiff's supplemental evidence, since it is a notice abraham.163 5 [* 7] to cure his failure to pay charges due, it is irrelevant to plaintiff's claim for an injunction prohibiting defendants from terminating his lease as long as he timely pays charges due. Therefore, since defendants suffered no surprise or other prejudice from plaintiff's presentation of his supplemental evidence, the court accepts the evidence, Colon v.