Goldsmith v. Ellenberg

• Decision Date: 25 March 2013
• Docket Number: Index No. 115560/08,Motion Seq. No.: 007,Motion Seq. No.: 006,Motion Seq. No.: 008
• Citation: 2013 NY Slip Op 31009
• Parties: DAVID GOLDSMITH, Plaintiff, v. SHEPPARD ELLENBERG, PENQUIN TENANTS CORP., ARISTOCRAT SUPPER CLUB, LLC, and JOHN DOE, As Subtenant of the Restaurant Premises located at 19-21-23 West 9th Street, New York, New York, Defendants.
• Court: New York Supreme Court

2013 NY Slip Op 31009

DAVID GOLDSMITH, Plaintiff,
v.
SHEPPARD ELLENBERG, PENQUIN TENANTS CORP.,
ARISTOCRAT SUPPER CLUB, LLC, and JOHN DOE,
As Subtenant of the Restaurant Premises located at 19-21-23
West 9th Street, New York, New York, Defendants.

Index No. 115560/08
Motion Seq. No.: 006
Motion Seq. No.: 007
Motion Seq. No.: 008

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 3

Motion Date: Otcober 19, 2012
March 25, 2013

BRANSTEN, J.:

This action arises out of the construction of an unlawful structure occupying the backyard appurtenant to plaintiff David Goldsmith's ("Goldsmith") cooperative apartment located at 23 West 9th Street in New York City (the "Building"). Plaintiff further contends that the roof of the structure also encroaches upward at least seven inches above the floor of his apartment, obstructing his egress from the apartment, and creating ongoing water leaks and a serious fire hazard. In the complaint, plaintiff seeks a declaratory judgment establishing his ownership rights to the backyard, as well as an injunction under section 871 of the Real Property Actions and Proceedings Law ("RPAPL"), requiring defendant Sheppard Ellenberg ("Ellenberg") to remove the encroachment.

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Motion Sequence Nos. 006, 007 and 008 are consolidated for disposition. In Motion Sequence No. 006, plaintiff moves for partial summary judgment on the seventh and eighth causes of action in the second amended complaint.

In Motion Sequence No. 007, plaintiff moves, pursuant to CPLR 3025(b), for an order granting him leave to amend the second amended complaint.

In Motion Sequence No. 008, defendant Penquin Tenants Corp. ("Penquin" or the "co-op") moves for an order: (1) dismissing Ellenberg's cross claims; (2) disqualifying Jeffrey Eilender, Esq. and the law firm of Schlam, Stone & Dolan LLP from representing plaintiff; and (3) striking Ellenberg's jury demand.

BACKGROUND

Since 1994, plaintiff has been the tenant-shareholder of Unit 1 (the ground floor apartment) in the Building. Plaintiff contends that he is also the leaseholder of the rear yard garden area. Plaintiff alleges that he has been denied the use and enjoyment of the backyard because of an illegal extension erected by the tenant of the Building's basement unit, which encroaches on the backyard, blocking his access to the yard. Plaintiff further alleges that the extension also encroaches above the floor of his apartment (the "Vertical Encroachment"), obstructing the doors that are supposed to open onto the backyard, and causing water to infiltrate the apartment.

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Penquin is a co-operative corporation, and the owner of the Building. Ellenberg has leased the restaurant space from Penquin since the Building's conversion to a co-op in 1980. Ellenberg has subleased the space to various restaurants over the years. Ellenberg claims that the encroachment was authorized by a provision of plaintiff's proprietary lease, and a substantially similar provision of the restaurant's lease, that gave the restaurant an option, within one year of the execution of the restaurant's lease, to build an extension into the backyard area, providing that certain conditions were met: (1) that the extension be built to the property line; and (2) that the restaurant build a terrace on top of the extension for the benefit of the tenant of Unit 1. Plaintiff contends that the restaurant failed to comply with those conditions because the extension did not go to the property line, and the required terrace was not built. In addition, the extension was illegal because the restaurant never obtained the required permit from the New York City Department of Buildings. Plaintiff contends that, as a result of the restaurant's failure to satisfy these conditions, all rights to the backyard reverted to the tenant of Unit 1.

Plaintiff also contends that the Vertical Encroachment constitutes an additional trespass on plaintiff's leasehold, and interferes with his use and enjoyment of his property. According to plaintiff, nothing in the co-op's operating statement, the restaurant lease, or plaintiff's proprietary lease authorizes the construction of the Vertical Encroachment.

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On November 15, 2008, plaintiffs commenced this action against Ellenberg, Penquin, Jonathan Hettinger, and John Doe, as subtenant of the restaurant premises. The original complaint asserted five causes of action: (1) a cause of action for a declaratory judgment that plaintiff "is the sole leaseholder" of the backyard area "from the building line to the property line" (Compl. ¶¶ 43-46); (2) an alternative cause of action for a declaratory judgment that plaintiff "is the sole leaseholder of the property, from the end of the structure extension that has been previously built, to the property line" (id. ¶¶ 47-48); (3) a cause of action against Penquin for breach of contract arising from Penquin's alleged "constant threats and harassment" of plaintiff in violation of his rights under the proprietary lease and the co-op's by-laws (id ¶¶ 49-54); and (4) two causes of action for an injunction barring defendants from installing air conditioning units in the backyard area. Id. ¶¶ 55-60.

Plaintiff subsequently amended the complaint to assert a sixth cause of action for an injunction barring the restaurant from proceeding with demolition and construction work that was "being performed in an unworkmanlike manner, causing dust to infiltrate [plaintiff's] apartment." (Am. Compl. ¶¶ 62-69.)

Plaintiff and Ellenberg each filed motions for summary judgment. Plaintiff also filed a motion to amend the complaint for a second time, adding: (1) specific allegations about the Vertical Encroachment; and (2) new causes of action (the seventh

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and the eighth) for injunctive relief under RPAPL § 871, seeking removal of the encroachment, or alternatively, requiring that defendants build the extension to the property line. On January 4, 2011, this court denied the motions for summary judgment, finding that the terms of the restaurant lease were ambiguous as to whether the lessee was obligated to build an extension to the property line in order to exercise the option, or instead had the right to build as far as the property line. The court also found an issue of fact as to whether the restaurant extension was illegally constructed without a required building permit. This court did, however, grant the motion for leave to amend, including the new allegations regarding the Vertical Encroachment. Plaintiff filed a note of issue on December 8, 2011. No trial date has been set.

DISCUSSION

Motion to Amend the Complaint (Motion Sequence No. 007)

Plaintiff moves to amend the complaint to add a new theory of recovery - a claim for damages. First, plaintiff seeks to amend the seventh cause of action under RPAPL § 871, which presently seeks an injunction requiring Ellenberg to remove the encroaching structure, in order to add an alternative claim for damages based on the diminution in the value of his property caused by the encroachment. Second, the proposed amended complaint contains two new causes of action (the ninth and tenth),

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which seek damages for common law trespass and nuisance based on the same underlying facts.

Pursuant to CPLR 3025(b), the court may grant leave to amend a complaint at any time. Leave to amend is "freely given" under CPLR 3025(b), '"provided the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit.'" Clark v. Clark, 93 A.D.3d 812, 816 (2d Dep't 2012) (citation omitted); see also Miller v. Cohen, 93 A.D.3d 424, 425 (1st Dep't 2012) (on a motion to amend a complaint, the plaintiff "need not establish the merit of the proposed new allegations, but must 'simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit'") (citation omitted); Loewentheil v. White Knight, Ltd., 71 A.D.3d 581, 581 (1st Dep't 2010) ("Leave to amend pleadings ... should be liberally granted").

Plaintiff's motion to amend the complaint is granted, as plaintiff has demonstrated that the proposed amended compliant is not devoid of merit. The statute upon which plaintiff bases its argument for an injunction expressly states that the court may grant damages as an alternative form of relief. See RPAPL § 871(1) ("Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction").

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The proposed causes of action for trespass and nuisance are also not devoid of merit. If plaintiff is able to establish rights to the backyard, the presence of the restaurant extension in the backyard could be construed as a trespass upon plaintiff's property. See Shaw v. Bronfman, 284 A.D.2d 267, 268 (1st Dep't 2001), Iv dismissed 97 N.Y.2d 725 (2002) ("The cause of action for trespass ... was supported by evidence of an entry onto plaintiffs' property by a steel beam emanating from the ... defendants' premises without the consent or permission of plaintiffs"). Likewise, the restaurant extension could be construed as interfering with plaintiff's "use and enjoyment" of the backyard, thus giving rise to a cause of action for nuisance. ...