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155 West 21st Street, LLC v. McMullan

April 16, 2009

IN RE 155 WEST 21ST STREET, LLC, ET AL., PETITIONERS-RESPONDENTS,
v.
ALASDAIR MCMULLAN, RESPONDENT-APPELLANT,
EXTELL 21ST STREET, LLC, RESPONDENT.



Order, Supreme Court, New York County (Michael D. Stallman, J.), entered June 27, 2007, which to the extent appealed from, denied respondent-appellant's cross motion for sanctions, unanimously reversed, on the law and the facts, the motion granted with sanctions to be imposed on petitioners-respondents and their counsel in the amount of $10,000 each, payable to the Commissioner of Taxation and Finance and the Lawyers' Fund for Client Protection, respectively, pursuant to 22 NYCRR 130-1.2 and in accordance with 22 NYCRR 130-1.3; and reasonable costs and attorneys' fees awarded to respondent Alasdair McMullan, payable by the above three entities in an amount to be determined on remand. The Clerk, Supreme Court, New York County, is directed to enter judgment accordingly.

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Andrias, Saxe, Catterson, Acosta, JJ.

109627/06

In this proceeding brought pursuant to RPAPL 881, we are called upon to revisit the issue of sanctions and whether petitioners, by filing a petition in a lower court to seek the relief denied them by this Court, engaged in conduct frivolous enough to warrant the imposition of the maximum financial sanctions.

On May 10, 2006, respondent, Alasdair McMullan, who leased an apartment at 153 West 21st Street (153), commenced an action against petitioners, HRH Construction, LLC, and 155 West 21st Street, LLC (HRH/155), the project manager and owner of a property development located at the adjoining property, 155 West 21st Street (155), alleging negligence, trespass and harassment related to HRH/155's construction activities.

On May 11, 2006, McMullan moved for preliminary injunctive relief to prohibit HRH/155 from entering his property. In his affidavit in support of the motion, McMullan stated that he had been a lessee since November 2002 of the garden floor apartment located at 153, which he occupied with his girlfriend, Katrina Carden. The leased property included a garden area back yard surrounded by a metal chain link fence, as well as a wooden privacy fence. He stated that sometime in 2004, HRH/155 began construction work on the 155 property which was immediately adjacent to his apartment and back yard.

McMullan depicted egregious conduct by the construction company such as cutting down a tree in the 153 back yard; removing without permission the chain link and wooden fences around the back yard; littering the yard with equipment and debris; blocking a rear fire exit door to McMullan's apartment; and causing extensive flooding of his basement.

Meanwhile, on May 31, 2005, McMullan and HRH/155 had entered into an agreement permitting HRH/155 to use and occupy McMullan's back yard for limited construction purposes. The agreement provided, in pertinent part, that HRH/155 was to pay McMullan's full rent, retroactive to April 2005 until completion of the work, and HRH/155 was to return that area to substantially the condition it was in before the fence was knocked down.

On July 22, 2005, a backhoe allegedly tore a hole through the walls of McMullan's apartment, damaging cabinets in the apartment and injuring Carden. When Carden complained, she was told by HRH/155 project manager, Alex Papadopoulos, that "we have every legal right to go back there and take the fencing down."

McMullan alleged that subsequently several "significant breaches" of the rent agreement occurred, "in addition to destructive and potentially deadly tortious conduct." Despite settlement discussions with HRH's insurance carrier, these claims were never resolved. Further, HRH/155 failed to pay McMullan's rent pursuant to the agreement, and although discussions ensued, HRH/155 ultimately refused to pay the rent.

In opposition to McMullan's motion for a preliminary injunction, HRH/155 submitted the affidavit of HRH's project manager, Alex Papadopoulos, a named defendant in the underlying action and that of Kevin Lalezarian, the developer of the construction project on-going at the 155 property. Lalezarian stated that HRH/155 was aware that McMullan objected to the access but HRH/155 did not know "whether he had any property interest in the garden or courtyard area (although he represented that he did)."

The motion court, on or about June 9, 2006, granted McMullan's motion for a preliminary injunction against HRH/155, without a hearing, and enjoined HRH/155 from entering onto the 153 property, which included the outdoor area, and from leaving debris and equipment on the subject premises. The court rejected HRH/155's argument that McMullan had no exclusive possessory rights to the garden and courtyard pointing to "the plain language of the lease and physical layout of the premises, particularly prior to the 155 defendants tearing down the fences." The court observed:

"[t]he 155 defendants argue, in essence, that they were and are entitled and plaintiffs have no basis to object to trespass on the 153 property despite the admitted absence of a current agreement with plaintiffs or the 153 property owner, to tear down the fences, trees and uproot plants, to block ingress and egress to plaintiffs' home, to leave debris in the garden and courtyard of one's neighbors, to otherwise engage in the conduct of which plaintiffs complain, and to ...


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