317 West 89th Sreet, LLC v. Engstrom, INDEX NO. 111136/11
| Decision Date | 21 August 2012 |
| Docket Number | MOTION SEQ. NO. 001,INDEX NO. 111136/11 |
| Citation | 2012 NY Slip Op 32225 |
| Parties | 317 WEST 89th SREET, LLC, Plaintiff, v. LYNDA ENGSTROM, Defendant. |
| Court | New York Supreme Court |
PRESENT: MANUEL J. MENDEZ
Justice
Upon a reading of the foregoing cited papers, plaintiffs motion pursuant to CPLR §3211[a][7], CPLR §3212[a], CPLR §3212[e], for summary judgment on its first and second causes of action and for summary judgment dismissing the defendant's first and second affirmative defenses and first through seventh counterclaims, is granted to the extent that the defendant's second affirmative defense, first, third through eighth counterclaims are severed and dismissed, the remainder of the relief sought is denied. Defendant's cross-motion pursuant to CPLR §3211[a][1],[7] and CPLR §3212 for summary judgment dismissing the plaintiff's first, second, third and fourth causes of action is granted, to the extent that plaintiff's first, third and fourth causes of action are severed and dismissed without prejudice to the commencement of an eviction proceeding, the remainder of the relief sought is denied.
Plaintiff makes this motion pursuant to CPLR §3211 [a][7], CPLR §3212[a] , CPLR §3212[e], for summary judgment on its first and second causes of action and for summary judgment, dismissing the defendant's first and second affirmative defenses and first through seventh counterclaims.
Defendant opposes the motion and cross-moves pursuant to CPLR §3211 [a][1],[7] and pursuant to CPLR §3212 for summary judgment dismissing plaintiff's first, second, third and fourth causes of action.
In order to prevail on a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 89 N.Y. 2d 833, 675 N.E. 2d 548, 652 N.Y.S. 2d 723 [1996]). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence in admissible form, sufficient to require a trial of material factual issues (Amatulli v. Delhi Constr. Corp., 77 N.Y. 2d 525, 571 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]).
A motion to dismiss pursuant to CPLR §3211 [a][1], requires that the party seeking dismissal produce documentary evidence that "utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994]). A motion to dismiss pursuant to CPLR §3211[a][7], requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and it is properly pled (Guggenheimer v. Ginzberg, 43 N.Y. 2d 268, 401 N.Y.S. 2d 182, 372 N.E. 2d 17, [1977]). Documentary evidence that contradicts the allegations, or pleadings that consist of bare legal conclusions will not be presumed to be true and are a basis for dismissal (Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D. 2d 74, 760 N.Y.S. 2d 438 [N.Y.A.D. 1st Dept.,2003]).
The complaint asserts four causes of action (Mot. Exh. R). The first cause of action seeks a declaratory judgment that defendant has violated 9 NYC RR §2204.2(1) and §2204.2(6), of the Rent Control Law thereby entitling plaintiff to terminate defendant's tenancy and seek eviction upon service of proper notices. The second cause of action is for a permanent injunction compelling the defendant to provide plaintiff with access to her apartment for purposes of obtaining a Department of Buildings (DOB) electrical sign off, so that the Certificate of Occupancy can be amended. The third cause of action seeks a further declaratory judgment that plaintiff's actions constitute a nuisance and a further violation of the Rent Control Law under 9 NYC RR §2204.2(2), entitling the defendant to seek eviction upon service of proper notices and the fourth cause of action is for exemplary and punitive damages.
Defendant has asserted two affirmative defenses in her answer, failure to serve the required predicate notices and breach of warranty of habitability requiring an abatement of rent (Mot. Exh. T). Defendant asserts eight counterclaims, the first counterclaim seeks a permanent injunction and retroactive abatement of rent pursuant to Real Property Law 235[b] and the second counterclaim is for a permanent injunction enjoining the plaintiff from committing any further acts of nuisance, trespass, harassment and intentional infliction of emotional anguish. The third counterclaim is intentional and reckless infliction of emotional distress; the fourth counterclaim is for nuisance; the fifth counterclaim is for trespass; the sixth counterclaim is for breach of warranty of quiet enjoyment; the seventh counterclaim pursuant to Real Property Action and Proceedings Law §853 (RPAPL), seeks treble damages for unlawful eviction; and the eighth counterclaim seeks a retroactive abatement for breach of the warranty of habitability.
Defendant resides in a rent controlled apartment, #2W1, located at 317 West 89th Street, New York, New York. She is over 70 years old and has resided in the building over forty years. In 2006, the building was converted to condominiums.
Plaintiff is attempting to amend the building's certificate of occupancy to reflect additional units that were added to the second floor between 1953 and 1956 and perform electrical repairs to comply with current electrical code requirements. It seeks summary judgment on the first and second causes of action claiming verbal and written requests for access to the defendant's apartment to perform electrical repairs, were denied when defendant made unnecessary and unreasonable demands. Plaintiff retained the services of Vlashava Electric, utilizing Vladimir Vata, a licensed master electrician, and obtained a DOB permit for electrical work on May 31, 2011. Vladimir Vata, states that electrical repairs were performed in apartments 2W2 and 2W3 on May 18 and May 21, 2011, and electrical repairs to defendant's apartment will not take more than a day or two. Plaintiff claims this action only seeks declaratory relief, and until it commences an eviction proceeding, predicate notice is not required. Plaintiff seeks to dismiss the defendant's first and second affirmative defenses because they do not apply to the stated causes of action. It claimsthat the statute of limitations has run on those counterclaims relying on facts that occurred more than one year prior to this action, except for those counterclaims based on nuisance and trespass which have a three year statute of limitations. Plaintiff seeks to dismiss defendant's first through seventh counterclaims because they are not sufficiently stated.
Defendant opposes plaintiff's motion claiming summary judgment should be denied on the first and second causes of action because there remain issues of fact as to the reasonableness of plaintiffs actions. She claims the plaintiff should be denied injunctive relief because there has been no predicate notice. Defendant seeks to dismiss the complaint and obtain summary judgment claiming the plaintiff has no outstanding DOB violations and is attempting to harass her into leaving her rent controlled apartment. Defendant claims that plaintiff has attempted to perform electrical repairs in her apartment prior to obtaining an electrical permit as occurred in apartments 2W2 and 2W3, and that all the required permits were not obtained. In support of her claim that more permits are needed, she provides the affidavit of Gerald I. Goldstein, a registered architect, who states that the work described by Vladimir Vata is not a minor one or two day repair, but a renovation that would affect weight bearing walls and requires additional construction permits.
Pursuant to CPLR §214[4], the statute of limitations for claims of nuisance and tresspass is three years (Sova v. Glasier, 192 A.D. 2d 1069, 596 N.Y.S. 2d 228 [N.Y.A.D. 4th Dept., 1993]). A claim of nuisance can have an extended statute of limitations if it is continuing in nature giving rise to successive causes of action (Lucchesi v. Perfetto, 72 A.D. 3d 909, 899 N.Y.S. 2d 341 [N.Y.A.D. 2nd Dept., 2010]). Wrongful eviction claims asserted pursuant to RPAPL §853 have a one year statute of limitations (Gold v. Schuster, 264 A.D. 2d 547, 694 N.Y.S. 2d 646 [N.Y.A.D. 1st Dept., 1999]. Pursuant to CPLR §215 claims for constructive eviction, intentional infliction of emotional distress and harassment pursuant to the administrative code have a one year statute of limitations (Kent v. 534 East 11th Street, 80 A.D. 3d 106, 912 N.Y.S. 2d 2 [N.Y.A.D. 1st Dept. 2010], Spinale v. Guest, 270 A.D. 2d 39, 704 N.Y.S. 2d 46 [N.Y.A.D. 1st Dept., 2000] and Bruce v. College Properties, Inc., 10 A.D. 3d 538, 782 N.Y.S. 2d 61 [N.Y.A.D. 1st Dept., 2004]).
The right of a building owner to evict tenants protected by the New York...
To continue reading
Request your trial