Leisaaras v. B-U Realty Corp.

• Decision Date: 06 December 2022
• Docket Number: Index No. 161448/2014,MOTION SEQ. No. 010
• Citation: 2022 NY Slip Op 34110 (U)
• Parties: LEISAARAS, CATHERINE SCHWARTZ, ALBERT PANOZZO, GEORGIA MARANTOS, YU PING TANG, JAMES GLADSTONE, KATHLEEN CAMPANA, PETER KANE, PAULINA PERERA-RIVEROLL, KATHARINE LASELL, JOHN MENAPACE, KAREN MENAPACE, Plaintiffs, v. B-U REALTY CORP., PAUL BUGONI, Defendants.
• Court: New York Supreme Court

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2022 NY Slip Op 34110(U)

LEISAARAS, CATHERINE SCHWARTZ, ALBERT PANOZZO, GEORGIA MARANTOS, YU PING TANG, JAMES GLADSTONE, KATHLEEN CAMPANA, PETER KANE, PAULINA PERERA-RIVEROLL, KATHARINE LASELL, JOHN MENAPACE, KAREN MENAPACE, Plaintiffs, v. B-U REALTY CORP., PAUL BUGONI, Defendants.

Index No. 161448/2014, MOTION SEQ. No. 010

Supreme Court, New York County

December 6, 2022

Unpublished Opinion

MOTION DATE 10/22/2021

DECISION + ORDER ON MOTION

James E. d'Auguste, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 010) 341, 342, 343, 347, 348, 349, 350, 351 were read on this motion to/for REARGUMENT/RECONSIDERATION

In this residential landlord/tenant action, plaintiffs move for leave to reargue (motion sequence number 010) a portion of their earlier motion for summary judgment (motion sequence number 009). The court's prior decision partially disposed of the latter motion. This decision fully disposes of both motions.

BACKGROUND

All plaintiffs are tenants of a residential apartment building located at 945 West End Avenue in the County, City and State of New York (the building). See NYSCEF document 280 (amended verified complaint), ¶¶ 2-15. Defendant B-U Realty Corp. is the building's corporate owner, and individual co-defendants, Paul and Irene Bogoni, are officers and principals of B-U (together, defendants). Id. ¶¶ 16-18.

On November 15, 2016, plaintiffs served an amended complaint raising causes of action for: 1) rent overcharge; 2) a preliminary injunction; 3) a stay; 4) harassment; and 5) attorney's fees. See Altarac affirmation in opposition (motion sequence number 009), exhibit D (amended verified complaint), ¶¶ 20-45. The current motions concern plaintiffs' claims for rent overcharge (cause of action #1) and attorney's fees/court costs (cause of action #5). The court's August 24, 2021 decision granted plaintiffs' earlier motion to the extent of awarding partial summary judgment on the issue of liability only on the rent overcharge claims of nine of the building's 13 moving plaintiffs (specifically, Leisa Aras, Albert Panozzo & Georgia Marantos, Peter Kane & Paulina Perera-Riveroll, John & Karen Menapace, Sarah Barish-Straus and Patricia Lederer), held the motion in abeyance with respect to the claims of two other plaintiffs (James Gladstone & Kathleen Campana), and denied it with respect to the claims of two final plaintiffs (Robert Arnot & Ellen Hirsch). See NYSCEF document 336. The August 24, 2021 decision held in abeyance plaintiffs' request for summary judgment on the issue of damages relating to foregoing rent overcharge claims (cause of action #1) and plaintiffs' claim for attorney's fees and court costs (cause of action #5). Id. The August 24, 2021 decision finally directed plaintiffs to produce certain additional materials necessary for the court to complete its calculations with respect to their rent overcharge claims and to render a final decision on their summary judgment motion. Id. Plaintiffs' counsel did so in a supplemental submission dated October 12, 2021 (which also offered a modification to the court's calculation methodology). See Howard supplemental affirmation. On October 22 2021, plaintiffs also submitted this motion for leave to reargue the portion of their prior summary judgment motion that pertained to the rent overcharge claims of seven plaintiffs (specifically, Leisa Aras, Peter Kane &amp Paulina Perera-Riveroll, Robert Arnot & Ellen Hirsch James Gladstone & Kathleen Campana and Sarah Barish- Straus). See notice of motion (motion sequence number 010). Defendants submitted opposition to that motion on December 9, 2021. See Altarac affirmation in opposition (motion sequence number 010). With the receipt of plaintiffs' reply papers, this matter is now fully submitted.

DISCUSSION

For the sake of clarity, this decision will discuss the two instant motions in reverse order.

I. Plaintiff's Motion to Reargue (motion sequence number 010)

CPLR 2221 ("Motion affecting prior order") provides, in part, as follows:

"(d) A motion for leave to reargue:

"1. shall be identified specifically as such;

"2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

"3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry...."

Settled appellate precedent holds that leave to reargue pursuant to CPLR 2221 may only be granted upon a showing "'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision.'" William P. Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27 (1^st Dept 1992), quoting Schneider v Solowey, 141 A.D.2d 813 (2d Dept 1988). The Appellate Division, First Department, cautions that "a motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.'" Matter of Anthony J. Carter, DDS, P.C v Carter, 81 A.D.3d 819, 820 (2d Dept 2011); quoting McGill v Goldman, 261 A.D.2d 593, 594 (2d Dept 1999). Here, plaintiffs' motion identifies it as a request for leave to reargue the portion of its earlier motion for summary judgment. Plaintiffs submitted it in a timely fashion on October 22, 2021, which was within the 30-day period after the court's August 24, 2021 decision was entered on September 22, 2021. See NYSCEF document 336. The court will now consider plaintiffs' arguments that it "overlooked or misapprehended" certain matters when it rendered that decision.

Sarah Barish-Straus (apartments 2C and 9D)

The August 24, 2021 decision awarded Barish-Straus summary judgment on the issue of liability on so much of her rent overcharge claim as pertained to her tenancy in apartment 9D, but rejected so much of that claim as was based on her earlier tenancy in apartment 2C. See NYSCEF document 336 at 15-18. Plaintiffs' reargument motion asserts that the court erred in disallowing Barish-Straus's rent overcharge claim with respect to apartment 2C. See notice of motion (motion sequence number 010), Howard affirmation, ¶¶ 42-49. Counsel specifically asserts that the court "overlooked or misapprehended the ... undisputed evidence" consisting of (a) Barish-Straus's January 8, 2021 affidavit in support of plaintiffs' summary judgment motion, and (b) defendants' "acknowledgement" of the truth of the statements in her affidavit, as evinced by the building-wide DHCR rent roll that they submitted as an exhibit to their opposition papers to that motion. Id. However, as noted, CPLR 2221 (d) (2) only permits a grant of reargument upon a movant's showing that "matters of fact... [were] overlooked or misapprehended by the court." Here, the court did not overlook or misapprehend any "matters of fact." Both of the aforementioned pieces of evidence were considered as part of the August 24, 2021 decision, and the court found that they did not constitute sufficient documentary proof of Barish-Straus's tenancy or rent payment history in apartment 2C. See NYSCEF document 336 at 15-18. Counsel's argument that the materials are "undisputed" does not alter the fact that he failed to meet his burden of proof with respect to Barish-Straus's tenancy in the unit. As noted, "a motion for leave to reargue 'is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."' Matter of Anthony 1 Carter, DDS, P.C. v Carter, 81 A.D.3d at 820 (citation omitted). Accordingly, the court denies plaintiffs' reargument motion with respect to Barish-Straus.

James Gladstone and Kathleen Campana (apartment 10B)

The August 24, 2021 decision held plaintiffs' summary judgment motion in abeyance with respect to Gladstone's and Campana's rent overcharge claim. See NYSCEF document 336 at 40-41. The court found that defendants had not committed fraud by treating apartment 10B as deregulated in 2003 when Gladstone and Campana first took possession of it and charging them a market rate rent. Id. The decision noted that: (a) the building was not enrolled in the "J-51" real estate tax abatement program between 2000 and 2005, (b) apartment 10B was therefore not rent stabilized by operation of law at that time (Roberts v Tishman Speyer Props., L.P., 62 A.D.3d 71 [2009], affd 13 N.Y.3d 270 [2009]; Gersten v 56 7th Ave. LLC, 88 A.D.3d 189 [1^st Dept 2011]), (c) the "high rent/luxury deregulation" procedure set forth in the Rent Stabilization Code (RSC) consequently was available and permitted by the Rent Stabilization Law (RSL) at that time (RSL §§ 26-504.1 to 26-504.3, repealed by L.2019, c. 36, pt. D, § 4, eff. June 14, 2019), and (d) deregulation was also available because the rent stabilized tenant who preceded Gladstone and Campana in apartment 10B had vacated the unit (Matter of 73 Warren St., LLC v State of N.Y. Div. of Hous. & Community Renewal, 96 A.D.3d 524 [1^st Dept 2012]). See NYSCEF document 336 at 6-8, 40-41.

Plaintiffs' motion nevertheless argues that the court "overlooked or misapprehended that defendants' fraudulent scheme lasted over a decade with respect to plaintiffs Gladstone &amp Campana, and that defendants cannot credibly claim to have followed even pre-Roberts guidance." See notice of motion (motion sequence 010), Howard affirmation, ¶¶ 8-27. Plaintiffs particularly rely on the recent decision by the Appellate Division, First Department, in Montera v KMR Amsterdam LLC (193 A.D.3d 102 [1^st Dept 2021]) holding that a landlord's persistent failure to...