Gottesman v. Graham Apartments, Inc., No. 65447/2011.

CourtNew York Civil Court
Writing for the CourtHARRIET L. THOMPSON, J.
Citation16 N.Y.S.3d 792 (Table)
PartiesHoward GOTTESMAN, Plaintiff, v. THE GRAHAM APARTMENTS, INC. and Dekalb Management, Inc., Defendants.
Docket NumberNo. 65447/2011.
Decision Date05 April 2015

16 N.Y.S.3d 792 (Table)

Howard GOTTESMAN, Plaintiff
THE GRAHAM APARTMENTS, INC. and Dekalb Management, Inc., Defendants.

No. 65447/2011.

Civil Court, City of New York. Kings County.

April 5, 2015.

Michael F. Dailey, White Plains, NY, for Plaintiff.

Gartner & Bloom, By: Stuart F. Gartner, New York, NY, for Defendant.



Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Date(s) of Trial/Hearing:

January 16, 2013, February 27, 2013, March 15, 2013 and April 23, 2013.


In or about July 27, 2007, the Plaintiff, pro se, commenced a civil action in the Supreme Court of the State of New York in the County of Kings under Index Number 29232/2007 seeking, inter alia, specific performance and damages against the Defendant for (1) negligence, (2) private nuisance, (3) trespass, (4) breach of the warranty of habitability, (5) breach of contract and (6) breach of the covenant of quiet enjoyment.

In or about 2007, the Defendant, by the Law Offices of Margaret G. Klein & Associates interposed the first Answer in the Supreme Court action. (Neither party presented the first Answer to the Court.) It would appear that the parties engaged in discovery including, but not limited to, the service of a bill of particulars, discovery and inspection, and examinations before trial. On February 7, 2011, the action was transferred to the Civil Court in the County of Kings pursuant to CPLR § 325(d) and assigned Civil Court Index Number TS–300036–11/KI. During the pendency of the Civil Court action, the Plaintiff alleged that on August 17, 2011, a second flood occurred at the subject building and apartment. In or about September 2011, the Plaintiff moved to amend the complaint. On October 6, 2011, the Hon. Nancy M. Bannon granted the motion and directed the Plaintiff to serve the amended complaint in thirty (30) days. The court record reflects that one of the parties had served a Notice of Trial and the parties adjourned the case to March 26, 2012 for trial while that motion was pending. On October 6, 2011, the Defendant was served with Plaintiff's amended complaint and subsequently, in or about December 29, 2011, the Defendant served an amended verified answer. On March 19, 2012, the Plaintiff served and filed a motion to amend and to supplement his bill of particulars and to add new monetary and personal property claims, and to correct an error in the original bill of particulars. On the return date, the motion was adjourned to August 3, 2012, and on that date, the Hon. Ingrid Joseph granted Plaintiff's motion to amend his bill of particulars. In or about April 10, 2012, the Defendants served and filed an Order to Show Cause seeking, inter alia, an order directing the Plaintiff to engage in further discovery. On April 24, 2012, the Hon. Reginald Boddie granted the order to the extent that the Defendants were directed to engage in further motion practice and for further discovery with respect to the Plaintiff's amended complaint and supplemental bill of particulars provided that compliance with the order was within thirty (30) days. In the interim, on June 15, 2012, the parties were referred from the trial part (TAP Part) to the undersigned judge. The case could not be amicably resolved after a good faith conference between all of the parties and the Court, and was adjourned from June 15, 2012 to July 2, 2012 at 9:30 a.m. During that time period, the following documents were to be provided to the undersigned judge for review in an effort to resolve this case between the parties, to wit: the proprietary lease, bylaws, and house rules, if available, a breakdown of the mortgage payments and/or arrears, a breakdown of the maintenance payment and/or arrears, and a report of Dr. Gilbert and Veronica Kero. On July 2, 2012, the parties, after substantial conference, were unable to resolve this case. The Defendant agreed to withdraw the subpoena duces tecum and the parties agreed to exchange additional discovery. The court adjourned the case for trial to October 24, 2012 and based on administrative error, was adjourned from October 24, 2012 to January 16, 2013 for trial. The case proceeded to trial on January 16, 2013, February 27, 2013, March 15, 2013 and April 23, 2013.


In or about May 1987, the Graham Apartments, Inc., was incorporated as a New York corporation and remains a valid New York State corporation. The Graham Apartments, Inc., is the owner of the real property and building located at 3171 Whitney Avenue, Brooklyn, New York. The building is a 3–story brick structure that contains 28 residential apartments and no commercial stores. According to the parties, and the other records submitted to the Court, the Graham Apartments, Inc. is a private residential cooperative corporation as opposed to a private residential cooperative corporation that is regulated by the state and/or city governments exclusively for low and moderate income families (e.g., Housing Development Fund Corporation).

Graham Apartments is managed by Dekalb Management, Inc. Dekalb Management, Inc. is the registered managing agent for the subject premises and manages the day-to-day operation of the property.

On January 23, 2002, the Plaintiff purchased the shares allocated to apartment IG at the subject premises in an arm's length transaction. According to the evidence presented, the parties executed a proprietary lease, which commenced on January 23, 2002 and terminates on December 31, 2037 unless terminated sooner pursuant to the terms and conditions of the proprietary lease (Plaintiffs Exhibit “2”). The Plaintiff secured a mortgage from Citigroup (Citi Mortgage, Inc.) for a sum of $80,000.00 to purchase the cooperative apartment and the accompanying shares. The Plaintiff assumed occupancy of apartment IG as a single adult from January 23, 2002 to August 11, 2004 and he occupied the apartment alone. On August 11, 2004, it is undisputed that gallons of water entered apartment 1G It is also undisputed that there was an accumulation of water in the rear and in the front of the building on the aforementioned date. According to the record, there was about an inch to an inch and a half of water above the flooring and subflooring of the apartment that irrefutably caused reparable and irreparable damages to Plaintiffs floors, carpeting, rugs, baseboards, moldings, doors, crown moldings, service lines and personal property. In addition to apartment 1G, apartments 1A, 1B and 1E were also flooded and similarly affected by the water entering the building. Certain members of the Cooperative Board of Directors were present to observe the accumulation of water in the rear and front of the building and had the opportunity to enter the Plaintiffs apartment to observe the water damage in the subject premises. According to the Plaintiff, in direct contradiction of his complaint (see Amended Complaint at ¶ 131), he spent the night in his apartment, keeping the windows open and all ceiling fans on in an effort to help evaporate the water in the apartment. The Plaintiff, on August 12, 2004, purchased three (3) large window fans and “Damp–Rid”, a moisture absorbent product, to “help evaporate/absorb the remaining water that was under the hardwood floors and the saturated carpeting.” (Amended Summon and Complaint at ¶ 32). On August 12, 2004, the Plaintiff filed a claim with his individual insurance carrier for the subject apartment-State Farm Insurance. The claim was denied on the grounds that “the loss stemmed from water entering the apartment from outside and traditional insurance policies, including Plaintiff's, only cover water losses from the inside water source (i.e. broken pipe in wall, bathtub overflow, etc.).” (Amended Summons and Complaint at ¶ 136). Plaintiff notified the President of the management company, Pamela DeLorme, on August 11, 2004, August 12, 2004 and August 17, 2004 of the water damage and conditions of mold/mildew odor in the subject premises. The Plaintiff claims that the Defendant did not provide the name and policy number and other pertinent information of the Defendant's insurance carrier-Greater New York Insurance Company (hereinafter referred to as “GNY”) to submit his claim. On October 8, 2004, Barry Dickerson of GNY inspected the subject premises and surveyed the property and building. On November 16, 2004, the claim was denied by GNY. To the Plaintiff, this denial was based on alleged inaccurate information supplied to the carrier by the Defendant and not based on the validity of the actual claim. Additionally, the Plaintiff stated that his insurance carrier also denied his claim. Notwithstanding the denial of the claims by both carriers, neither party performed any repairs in the apartment. On December 1, 2004, the Defendant engaged Dr. Charles E. Gilbert, Toxicologist/Epidemiologist, and James O'Regan, Certified Environmentalist of the Epidemiology and Toxicology Institute of Hauppauge, New York to inspect the apartment. On December 27, 2004, Dr. Charles E. Gilbert and Mr. Sarah Gilbert issued a 7–page report which found, inter alia, visible fungi bloom; microbial smell; the entire Maplewood floors cupped and stained; all water boards wet in all rooms; and both bacterial count and fungi count were...

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