Rosen v. MHM Realty LLC

• Decision Date: 14 March 2022
• Docket Number: Index 160724/2015
• Citation: 2022 NY Slip Op 30854 (U)
• Parties: STEVEN ROSEN, Plaintiff, v. MHM REALTY LLC, MANHATTAN SKYLINE MANAGEMENT CORP., FRANCISCO MEDINA Defendants. Motion Seq. Nos. 005, 006
• Court: New York Supreme Court

2022 NY Slip Op 30854(U)

STEVEN ROSEN, Plaintiff, v. MHM REALTY LLC, MANHATTAN SKYLINE MANAGEMENT CORP., FRANCISCO MEDINA Defendants.

Motion Seq. Nos. 005, 006

Index No. 160724/2015

Supreme Court, New York County

March 14, 2022

Unpublished Opinion

MOTION DATE 10/18/2021, 08/18/2021

PRESENT: HON. PAUL A. GOETZ Justice

DECISION + ORDER ON MOTION

PAUL A. GOETZ, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 210, 211, 212, 213, 214, 215, 216, 217, 218 219, 220, 248, 250, 251, 252, 253, 255, 256, 257, 258, 259 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 306, 308, 309, 310, 317, 318, 319, 320, 322 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 249, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 305, 307, 311, 312, 313, 314, 315, 316, 321, 323 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.

Plaintiff Steven Rosen, a tenant in a building owned by defendant MHM Realty LLC and managed by defendant Manhattan Skyline Management Corp. (together "Landlord Defendants") commenced this action in October 2015 for, inter alia, assault, battery and harassment arising out of the alleged conduct of defendant Francisco Medina, a doorman in the building. Both plaintiff and defendant Medina have either lived or worked at the building for a long time and their dispute appears to have been on-going since at least 2007. The Landlord Defendants now move pursuant to CPLR 3212 for summary judgment seeking dismissal of all claims asserted against them (motion #005). Defendant Medina also moves pursuant to CPLR 3212 for summary judgment seeking dismissal of all claims asserted against him (motion #006). Plaintiff cross- moves pursuant to CPLR 3025 to conform the pleadings to the evidence or alternatively, for leave to file an amended complaint, in order to assert a claim for negligent retention.

Turning to the cross-motions first, under CPLR 3025, a party may amend a pleading "at any time by leave of court, before or after judgment to conform the pleading to the evidence." Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403, 411 (2014). Further, absent prejudice, courts are free to permit amendment even after trial. Id. Here, defendants have not submitted any argument or proof to show that they will be prejudiced by the assertion of the negligent retention claim. Further, contrary to the argument asserted by the Landlord Defendants, this claim is not time barred because under CPLR 203(f), because it relates back to the negligent hiring claim asserted in the complaint. Under CPLR 203(f), "[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." Lang-Salgado v. Mount Sinai Medical Center, 157 A.D.3d 532, 533 (1^st Dep't 2018). Here, the complaint and the bill of particulars gave defendants adequate notice that the negligence claim was not merely based on their hiring practices but also that the Landlord Defendants had notice of defendant Medina's alleged violent propensities and harassment and failed to adequately address the issue. See Alharezi v. Sharma, 304 A.D.2d 414, 415 (1^st Dep't 2003). Accordingly, plaintiffs complaint is deemed to include a claim for negligent retention.

Regarding the Landlord Defendants' motion for summary judgment, the motion must be granted to the extent it seeks dismissal of the negligent hiring claim as there is no evidence that the Landlord Defendants violated any duty in hiring defendant Medina, and in any event, such hiring occurred at least twenty years prior to the alleged assault. With regard to the negligent retention claim, the only argument asserted by defendants to dismiss this claim is that it is untimely asserted. However, as discussed above, the negligent retention claim relates back to the complaint and therefore cannot be dismissed on this basis. With respect to the second and third causes of action for assault and battery, plaintiff does not dispute the argument by the Landlord Defendants that they cannot be held liable for these intentional acts and thus these claims will be dismissed insofar as they are asserted against the Landlord Defendants. Next, the Landlord Defendants argue that plaintiffs fourth cause of action for harassment under Administrative Code of City of New York Section 27-2005(d) should be dismissed as any such claim must be brought in Housing Court. However, the Supreme Court is a court of competent jurisdiction for purposes of adjudicating this violation as provided in Administrative Code Section 27-115(m)(2) and thus the claim cannot be dismissed on this basis. Carlson v. Chelsea Hotel Owner LLC, 159 N.Y.S.3d 833 (1^st Dep't 2022). Finally, the Landlord Defendants argue that plaintiffs...