Geller v. Mahsons Realty Corp.

• Decision Date: 29 May 1975
• Citation: 82 Misc.2d 599,370 N.Y.S.2d 332
• Court: New York City Court
• Parties: Stanley GELLER, as Executor of the Estate of Fred A. Finkl, Deceased, Plaintiff, v. MAHSONS REALTY CORP., Defendant. & Trial Term, Part 27

Page 332

370 N.Y.S.2d 332

82 Misc.2d 599

Stanley GELLER, as Executor of the Estate of Fred A. Finkl, Deceased, Plaintiff, v. MAHSONS REALTY CORP., Defendant.

Civil Court of the City of New York, New York County,

Special Term, Part I& Trial Term, Part 27.

May 29, 1975.

Butler, Jablow & Geller, New York City by Richard A. Whitney, New York City, of counsel, for plaintiff.

Philip I. Beane, New York City, for defendant.

NORMAN C. RYP, Judge.

Defendant's motion for summary judgment on its counterclaim was assigned, by Order of Judge Arthur E. Blyn, dated April 15, 1975 for:

1. hearing before this Court (Trial Term, Part 27) and determination on the issue of whether this Court lacks personal jurisdiction over corporate defendant for improper service (CPLR § 311) of subject summons & indorsed complaint ('process'); and, if so

2. final disposition of defendant's:

(a) motion for summary judgment; and (b) two applications contained in defendant attorney's Reply affirmation to:

(1) amend the 'ad damnum' clause of its counterclaim from $500.00 to $750.00; and

(2) strike plaintiff's action from the trial calendar, pending defendant's examination before trial of plaintiff decedent's daughter.

1. Defendant's Traverse

After hearing and due consideration of all the evidence, the Court finds, in fact and law, that service of process upon corporate defendant's president was legally sufficient pursuant to CPLR § 311. The Court notes that defendant, within three (3) days of service of process, duly served its Notice of Appearance, Answer & Demand for Bill of Particulars (Exhibit C-moving papers). See, McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 331, 238 N.E.2d 726, 728 (1968); Willo-Peer Corp. v. Bronx River Soundview Community Corp., 77 Misc.2d 275, 353 N.Y.S.2d 671 (Civ.Ct.-N.Y.Co.-1974, Blyn, J.); Belofatto v. Marsen Realty Corp., 62 Misc.2d 922, 310 N.Y.S.2d 191 (Civ.Ct.-N.Y.Co.-1970, Sandler, J.).

2. (a) Summary Judgment

In the interests of furthering justice and judicial motion economy (Behrman v. Pioneer Pearl Button Co., 190 App.Div. 843, 181 N.Y.S. 59 (1st Dep't-1920)), this Court will not deny nor defer disposition of this motion:

(1) despite defendant's failure to comply with Rule-2900.6 of this Court, requiring all CPLR Rule 3212 motions to be accompanied by a memorandum of law served simultaneously with the motion papers not within a Reply Affirmation; or

(2) as premature, under CPLR Rule 3212, subd. (a), because issue has not been joined on defendant's counterclaim, if amended, to increase its 'ad damnum' clause since plaintiff is not required to serve a reply, except by Court Order (§ 907--C.C.A.) and a triable issue of fact as to the amount or extent of damages does not bar summary judgment on liability, subject to an immediate hearing on the issue of liability. (CPLR Rule 3212, subd. (c); or

(3) as too late, due to laches, on the eve of trial in this Judicial Dep't (See, Jordan v. Levy, 16 A.D.2d 64, 66, 225 N.Y.S.2d 399, 401 (1st Dep't-1962); Cardozo v. Gulack, 30 A.D.2d 42, 289 N.Y.S.2d 593 (1st Dep't-1968)).

After review and due consideration of all papers & exhibits submitted, the Court finds the Opposing Affidavit of Candida Sena, dated April 4, 1975, is sufficiently based upon specific personal knowledge of evidentiary facts, not conclusory allegations based upon surmise, conjecture and suspicion (Shapiro v. Health Ins. Plan of N.Y., 7 N.Y.2d 56, 64, 194 N.Y.S.2d 509, 515--516, 163 N.E.2d 333, 337--338 (1959)). Such, together with defendant's supporting affidavits and affirmations, initial and reply, present material triable issues of fact, including, without limitation, whether plaintiff's decedent was constructively evicted (See, Rockrose Associates v. Peters, N.Y.L.J., April 9, 1975, P. 18, Cols. 5--6, Ryp, J., Misc., 366 N.Y.S.2d 567 (Civ.Ct.-N.Y.Co.-1975), Rasch, Landlord and Tenant, 2d ed. § 930 and cases cited therein); and how long the repairs or construction overhead lasted (2 weeks ( 4, Supporting Aff.-Charles Hittner-3--25--75) or a month ( 10, Aff. in Reply-defendant's attorney-4--11--75)) requiring denial of defendant's motion for summary judgment. (See, CPLR Rule 3212, subd. (b); 4 Weinstein-Korn-Miller, N.Y. Civil Practice § 3212.05(c)).

(b) Two (2) Applications for Alternative Relief in Reply Affirmations.

Defendant's applications for alternative relief, usually requested in a notice of motion (CPLR Rule 2214(a)), not in an Attorney's Affirmation in Reply served, by mail, on Friday, April 11, 1975, before a Monday morning, April 14, 1975, motion return date, is not in accord with the normal motion practice of this Court. (§ 2900.8(e)-22 NYCRR (B)). Such will be only considered in the interests of judicial dispositive economy of this action (See, Behrman v. Pioneer Pearl Button Co., supra) and not as a matter of precedent.

(1) Amend Defendant's Counterclaim's 'Ad Damnum' Clause, by Increase from $500.00 to $750.00.

Such is governed by Rules 909-C.C.A. § 3025-CPLR, which require a proper supporting affidavit, enforced with increased strictness by this Judicial Department (See, Osborne v. Miller, 38 A.D.2d 298, 300, 328 N.Y.S.2d 769, 771 (1st Dep't-1972); Coleman v. N.Y. City Transit Authority, 44 A.D.2d 673, 4, 355 N.Y.S.2d 326 (1st Dep't-1974)). For the reason noted above, the Court will treat the Affidavit of Seymour Hittner, dated April 11, 1975, as such a required supporting affidavit under CPLR Rule 3025. The Court notes that there is no prejudice to plaintiff, if whose claim of constructive eviction justifying abandonment prevails, there will be no rent, whether $500.00 or $750.00, due and owing under subject lease. (See, Rockrose Associates v. Peters, supra).

2. (b)(1)

Accordingly, the Court grants defendant's motion to amend the 'ad damnum' clause of its counterclaim, by increase from $500.00 to $750.00, which shall be deemed amended upon service by defendant upon plaintiff of a true copy of this Order, with Notice of Entry thereof.

(2) Strike Plaintiff's Case from Trial Calendar, Pending Examination Before Trial of Plaintiff Decedent's Daughter.

Such is governed by Rule 2900.16(c)-NYCRR and must be made with twenty (20) days after service of the Notice of Trial, dated March 25, 1975 herein, with a supporting affidavit specifying the reason(s) therefor. Defendant's Reply Affirmation, dated April 11, 1975 (and within the required 20 days), claims ( 4) plaintiff's attorney previously 'stated that he had no witnesses to this incident' (other than decedent) and 'withheld this information' as to decedent's daughter as a witness until the latter's Affidavit in Opposition herein, dated April 19, 1975, and if, as so, summary judgment is denied, included the above alternative application.

As noted above, defendant's Reply Affirmation was served, by mail, on Friday, April 11, 1975, and submitted with defendant's main motion for summary...