Gallagher v. Zaloga

• Citation: 2022 NY Slip Op 32786 (U)
• Decision Date: 19 August 2022
• Docket Number: Index No. L&T 311505/21
• Parties: BUSBY M. GALLAGHER Petitioner-Tenant, v. DARIUSZ ZALOGA, Respondents-Owners. And NEW YORK CITY DEPARTMENT OF BUILDINGS ("DOB"), NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), and NEW YORK CITY DEPARTMENT of HOUSING PRESERVATION AND DEVELOPMENT ("DHPD"), GABRIELLA JORIO, HEE JIN KANG, NORA LIGORANO and ADRIENNE TRINKA, Petitioners-Tenants, v. DARIUSZ ZALOGA, Respondents-Owners. And NEW YORK CITY DEPARTMENT OF BUILDINGS ("DOB"), NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), and NEW YORK CITY DEPARTMENT of HOUSING PRESERVATION AND DEVELOPMENT ("DHPD"),
• Court: New York Civil Court

2022 NY Slip Op 32786(U)

BUSBY M. GALLAGHER Petitioner-Tenant,
v.
DARIUSZ ZALOGA, Respondents-Owners.

And NEW YORK CITY DEPARTMENT OF BUILDINGS ("DOB"), NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), and NEW YORK CITY DEPARTMENT of HOUSING PRESERVATION AND DEVELOPMENT ("DHPD"), GABRIELLA JORIO, HEE JIN KANG, NORA LIGORANO and ADRIENNE TRINKA, Petitioners-Tenants,
v.
DARIUSZ ZALOGA, Respondents-Owners.

And NEW YORK CITY DEPARTMENT OF BUILDINGS ("DOB"), NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION ("DEP"), and NEW YORK CITY DEPARTMENT of HOUSING PRESERVATION AND DEVELOPMENT ("DHPD"),

Index No. L&T 311505/21

Civil Court of the City of New York, Kings County

August 19, 2022

Unpublished Opinion

The legal Aid Society Attn: Meghan Walsh. Esq. Attorneys for Petitioners - Gabriella Joria, Hee Jin Kang, Nora Ligorano and Adrienne Trinka

Mobilization For Justice, Inc. Attn: Emilio Paesano, Esq. Attorneys for Petitioner - Busby M. Gallagher

Zaloga Law, PLLC c/o Law Office Of Evans D. Prieston, P.C. Attn: Marta Zaloga, Attorneys for Respondent -Dariusz Zaloga

Wilson, Eslser, Moskowitz, Edelman &Dicker, LLP Attn John P. Kelly, Esq. Attorneys for Respondent - Dariusz Zaloga

Department of Housing, Preservation and Development Attn: Julia Wilson, Esq. Attorneys for Respondent - DHPD

New York City Law Department Attn: Jassica Katzen, Esq.

DECISION AND ORDER

Hon. Sergio Jimenez Judge, Housing Court

1

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioners' motion for twofold relief: of an order to tender permit and other plan documents as well as a protective order preventing respondent from materially altering the premises and any other relief as the court may find appropriate:

Papers Numbered

Order to Show Cause................................................ 1/4 (NYSCEF 26 -32/30-39)

Notice of Motion and Affidavits Annexed.......................

Answering Affirmations/Affidavits.................................. 2, 3/5, 6 (NYSCEF 31, 34-48 /41, 43-57)

Replying Affirmations..................................................... 3/7 (NYSCEF 49-54 / 59-66)

Exhibits.............................................................................

Memorandum of law.........................................................

Petitioners commenced these two interrelated HP proceedings against respondent alleging that repairs are needed following a fire in the building located at 67 Devoe Street, Brooklyn, New York 11211 ("premises") - Gallagher in apartment 2R, Jorio in Apartment 2L, Kang in apartment 4L, Ligorano in apartment 1 and Trinka in apartment 4R. The procedural posture of this proceeding is recounted in the April 5, 2022 Decision/Order. The petitioners brought orders to show cause seeking an order from the court enjoining the respondent from materially changing the composition of subject premises. The court heard arguments on the fully briefed motions on June 21, 2022 and reserved decision.

Motion to compel document production and seeking an injunction against material alterations

Petitioners move for an order requiring respondent to provide petitioners with documentation dealing with architect plans and permits as well as a protective order preventing the respondent from materially altering the subject premises, including altering the size and layout of the apartments in question.

2

Respondent opposes on the grounds that they had a falling out with their employee which led to an unavailability of any of the documents and that the changes are required by Department of Buildings regulations.

The moving party, short of presumptions, always has the burden of proof with regard to the relief they are seeking (See Gravel v. Cicola, 297 A.D.2d 620 | A.D. 2d Dep't, 2002]; Matter of Stop &Shop Cos. Inc. v. Assessor of the City of New Rochelle, 32 Mise.3d 496 [Sup. Ct. Westchester Co, 2011]). Here, through petitioners' affidavits, there is an undisputed...