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Kosovsky v. Park South Tenants Corp.

Supreme Court, New York County

August 7, 2013

PETER KOSOVSKY, M.D., Plaintiff,
v.
PARK SOUTH TENANTS CORP., BOARD OF DIRECTORS OF PARK SOUTH TENANTS CORPORATION, ROSE ASSOCIATES, INC., AM&G WATERPROOFING, LLC and ELISEO ASSOCIATES, PLLC, Defendants Index No. 602813/2007

Unpublished Opinion

DECISION/ORDER

HON. KATHRYN E. FREED JUSTICE OF SUPREME COURT

RECITATION, AS REQUIRED BY CPLR§2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.

PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED................... ......1-4..........

ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED........... ................

ANSWERING AFFIDAVITS.............................................................. ......5...........

REPLYING AFFIDAVITS.................................................................... ..........6..........

EXHIBITS.............................................................................................. ......................

OTHER......................... (Memos of law)................................................ ........7-8.........

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:

Defendants' Park South Tenants Corporation, Board of Directors of Park South Tenant Corporation ("Park South") and Rose Associates, Inc. ("Rose"), move for an Order pursuant to CPLR§ 2221 (e), granting leave to renew the Court's written decision rendered on January 22, 2013 granting the motion in limine by Eliseo Associates, PLLC ("Eliseo"), and the cross-motion by plaintiff which sought to strike the Board's cross-claims based on the Board's spoliation of evidence; and upon renewal, denying the motion of Eliseo to dismiss the cross-claims of the movants, as well as plaintiffs cross-motion to strike the Answer of the movants. Defendants also move pursuant to CPLR§ 2221 (d), for leave to reargue the motion by Eliseo and the cross-motion by plaintiff, and upon re-argument, denying the motion of Eliseo, to dismiss the cross-claims of the movants, as well as plaintiffs cross-motion to strike the Answer of the movants.

Plaintiff opposes. After a review of the instant motion, all relevant statutes and case law, the Court denies the motion.

Factual and procedural background:

In addressing the instant motion, the Court provides the same recitation of facts as provided in its former decision. The instant action emanates from construction work performed on the balconies and facade of an apartment building located at 200 Central Park South, New York, New York, 10019. Park South is a cooperative corporation which owns said premises. Rose manages said premises. Co-defendant AM&G performed waterproofing and other construction services at said premises. Eliseo performed supervisory and design services at said premises.

Plaintiff assumed a leasehold interest via a proprietary lease to Apartment 21D in the aforementioned premises on October 25, 2001. He resided in the apartment through March 2006, when Park South commenced renovations of the premises. In 2006, the cooperative board for the building decided to replace the roof and balcony railings, consisting of a form of metal and wire, with panels that were made of glass framed in metal. The proposed panels were deemed to be stronger and superior to the metal and wire railings. Additionally, the terrace floors which had been made of terrazzo, were to be replaced with concrete pavers covered with a waterproofing substance.

Rose hired AM&G to perform the waterproofing, re-grading and restoration of the balconies and terraces during the renovation process. Rose, in turn, hired Eliseo to provide architectural and engineering services with regard to building envelope repairs including work on the facade and balconies of the building. During the period of this renovation work, plaintiff made several complaints to South Park. He complained that an inordinate amount of dust had infiltrated his apartment. He also complained that a pervasive and offensive odor had permeated the entire apartment, due to the openings that were created during the work on the building. He further complained that cracks suddenly began appearing on the walls, ceilings and windows, which he presumed were a result of the continuous vibration of the loading and unloading of heavy materials, roof removal and jack hammering. Unable to tolerate these conditions any longer, plaintiff felt compelled to move out of his apartment.

According to Park South, when plaintiffs complaints were brought to the attention of Mr. Frank Eliseo, Mr. Eliseo was actually in the process of developing a plan to correct the problem. Park South neglected to elaborate about this proposed plan, and/or if it was ever implemented. However, Park South alleged that the dust issue was never fully resolved because plaintiff allegedly refused to permit entry to anyone to clean it, nor did he clean it himself. Moreover, in 2006, Park South informed plaintiff that during the process of the construction, it was discovered that the original windows in his apartment had been improperly installed. Plaintiff was advised that his original windows had not been attached to the structure of the building, and as a result of this detachment, they could not seal the apartment appropriately, to prevent the entry of dust and other particles. Park South also alleged that when they urged plaintiff to contact the contractor who originally installed the windows to correct this defect, he refused to do so.

After the exterior brickwork had been completed and the terrazzo flooring was removed from the terraces of the building, the waterproofing process commenced. This process consisted of applying the substance "decothane" to the structural concrete which remained after the removal of the terrazzo flooring. At some point, subsequent to plaintiffs complaints of a persistent odor, Mr. Eliseo went to plaintiffs apartment to investigate. Mr. Eliseo ultimately determined that the odor was emanating from the pooling of water on the balconies. He determined that to correct this problem, the balconies would have to ...


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