Getty v. Goh
| Docket Number | 60345/2018,SEQ NOS. 1&2 |
| Decision Date | 11 January 2019 |
| Parties | RICHARD GETTY, Plaintiff, v. CHARLES GOH, ILIANA MALDONADO, EDWARD P, CONE, 35 SUMMIT AVENUE OWNERS LTD. and PATRIOT MANAGEMENT CORPORATION, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION & ORDER
New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 16 through 76 were read for defendants' motion to dismiss (Seq 1), and plaintiffs motion to Amend Complaint (Seq 2) [1]
The owner of Unit 3 J, a residence at 35 Summit Avenue ("the Unit") in Port Chester brings this action to seek to recover damages for purported personal injuries and property caused by mold in the Unit. Plaintiff claims that due entirely to defendants' retaliation, fraud and continuing gross negligence against plaintiff, he cannot sell his property, which is a health hazard not only to plaintiff, but to other residents at 35 Summit Avenue. Before this court defendants bring this motion pursuant to CPLR 3211(a)(7) dismissing plaintiffs complaint for failure to state a cause of action; pursuant to CPLR 3211(a)(5), dismissing the second cause of action as being time-barred; pursuant to 22NYCRR 130-1.1, and imposing costs and significant financial sanctions upon plaintiff. Plaintiff opposes the motion, and cross moves to add a fifth cause of action to the original complaint.
Based upon the foregoing, the motions are decided as follows:
Pursuant to CPLR (a)(7) [2] . Thus, affidavits and other evidentiary material may also be considered to "establish conclusively that plaintiff has no cause of action" (Simmons v Edelstein, 32 A.D.3d 464, 465 [2d Dept 2006]). The court may also consider further affidavits where a meritorious claim lies within inartful pleadings (Lucia v Goldman, 68 A.D.3d 1064, 1065 [2d Dept 2009]). More succinctly, under CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, but if the court considers evidentiary material, the criterion then becomes "whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 A.D.3d 1180, 1181-82 [2010]; Marist College v Chazen Envtl. Serv. 84 A.D.3d 11181 [2d Dept 2011]). Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus (Dee v Rakower, 112 A.D.3d 204 [2d Dept 2013]).
This is not the first action brought by plaintiff for his alleged injuries from mold in the Unit. On February 18, 2015, plaintiff as a pro se litigant, commenced the first of three lawsuits arising from the alleged water intrusion of his Unit under Index Number 52528/2015, against 35/37 Summit Avenue Owners Ltd. Board of Directors and Patriot Management. On December 14, 2015, the Supreme Court (DiBella, J.), dismissed plaintiffs breach of contract cause of action, but allowed plaintiffs negligence claim to survive. The court (Bellantoni, J.) also found no basis to the renewal and reargument motion of that decision. On May 31, 2018, this court granted Summit and Patriot's motion dismissing the complaint, finding that there is no contractual relationship between plaintiff and Patriot; and also dismissing plaintiff negligence claim against Summit and Patriot.
Plaintiff was represented by counsel in the Second lawsuit on May 30, 2018, against Summit and Patriot under Index Number 58601/2018, and by amended complaint that alleges that Goh is the president of Patriot and Maldonado is the CEO of Summit. The Amended Complaint alleges negligence and breach of contract and implied warranty of habitability. Patriot and Summit's motions to dismiss on the grounds of collateral estoppel and res judicata was denied by this court; and the branch of motion to dismiss all causes of action as against the individual corporate defendants, Charles Goh and Iliana Maldonado was granted.
The instant lawsuit was commenced by plaintiff pro se, even though he has counsel in the Second Lawsuit. In this Third Lawsuit in connection with the purported mold in plaintiffs Unit, plaintiff alleged causes of action based upon fraud, defamation, violation of the right to privacy, and violation of New York States Human Rights Law, the Complaint now seeks $8, 225, 000 in damages.
First, as a procedural matter, defendants raise that plaintiffs affidavit should be disregarded in its entirety, because he failed to submit his affidavit in proper admissible form. Plaintiffs 70 page Affidavit, which he submits in opposition to defendants' motion to dismiss and in support of his cross-motion to amend his complaint and to disqualify defendants counsel's law firm is defective, as it bears no notary stamp and signature, does not contain any oath or affirmation that it was submitted under penalties of perjury, and it does not contain plaintiff s own signature. Thus, this affirmation is not in admissible form, and may not be considered in opposition to the motion to dismiss (Laventure v McKay, 266 A.D.2d 516, 517, [2d Dept 1999]). While the court is mindful that plaintiff is proceeding pro se, his pro se status does not change the fact that his affidavit cannot be properly before the court in its present form. Accordingly, plaintiffs notice of cross-motion is denied, on this basis alone. Plaintiff also failed to attach a proposed amended pleading in violation of CPLR 3025(b), which is also the basis for the denial of plaintiffs cross motion to amend the complaint.
Turning to defendants' motion to dismiss the First Cause of Action sounding in fraud, the Complaint alleges that defendants instructed or conspired with their legal representative and/or contractors to deceive a court of law in a civil case brought by plaintiff against Summit and Patriot in the First Lawsuit by submitting two invoices from 2012 as part of the prior summary judgment motion, which resulted in a dismissal of the First Lawsuit. This involves two invoices from a contractor K.P.G. Services, Inc dated March 1, 2012 and from Peak Restorations Inc with an invoice dated April 18, 2012, and they indicate several small repairs were performed in the Unit in 2012. Plaintiff asserts that the work as reflected in these invoices, was never performed in the Unit in 2012, and that they were forged. Plaintiff alleges that he recognized them as fraudulent when defendants' counsel presented them during a deposition and alerted this fact to Audrey D. Medd, Esq. of Lynch Schwab & Gasparini PLLC.
As a procedural matter, defendants argue that plaintiffs fraud claim, regarding these invoices should be dismissed as being time barred since they are dated March 1, 2012 and April 18, 2012, and the Third Lawsuit was not filed until July 6, 2018, which is beyond the applicable six year statue of limitations period. Plaintiff also makes other general accusations of claims of fraud. The statute of limitations for fraud is six years from the commission of the fraud or two years from the time the plaintiff discovered, or could with reasonable diligence have discovered, the fraud, whichever is later (Loeuis v Grushin, 126 A.D.3d 761, 763-764, [2d Dept 2015]) Pacella v RSA Consultants, Inc., 164 A.D.3d 806, 809 [2d Dept 2018]). Plaintiff claims that the fraud was committed when defendants filed the alleged forged financial documents in court on March 13, 2017, which is when the Statute of Limitations should begin to accrue. Here, there is a question as to when plaintiff, at the very latest, possessed knowledge of the facts underlying his allegations of fraud (Clarke-St. John v City of New York, 164 A.D.3d 743, 744, [2d Dept 2018]). Defendants as the moving party, on a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, failed to establish prima facie, that the time in which to commence the action has expired (Doukas v Ballard, 135 A.D.3d 896, 897, [2d Dept 2016]).
As to the merits of defendants' motion to dismiss plaintiffs first cause of action sounding in fraud, the elements of a cause of action to recover damages for fraud are: (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages (Doukas v Ballard, 135 A.D.3d 896, 898, [2d Dept 2016])...
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