BOARD OF MANAGERS OF THE RESIDENCE ON MADISON CONDOMINIUM, ON BEHALF OF ALL ITS UNIT OWNERS, Plaintiff,
MICHAEL ARYEH AND SHIREEN ARYHEN, AS TRUSTEES OF THE MAHIN ARYEH TRUST F/B/0 DANIELLA ARYEH DATED 8/1/97 AND AS TRUSTEES OF THE MAHIN ARYEH TRUST, F/B/0 MORAD ARYEH, DATED 8/1/97, Defendants. Index No. 104343/11
MOTION DATE 07-24-2013
HON. MANUEL J. MENDEZ JUSTICE
Upon a reading of the foregoing cited papers, it is Ordered that plaintiffs' motion for summary judgment pursuant to CPLR §3212, to dismiss the counterclaims and pursuant to CPLR 8303-a for frivolous practice, is granted only as to the dismissal of the counterclaims and the eighth and ninth affirmative defense. The remainder of the relief sought in plaintiff's motion is denied. Defendants' cross-motion pursuant to CPLR §3212 for summary judgment is denied.
Plaintiffs' motion seeks an Order granting summary judgment pursuant to CPLR §3212, dismissing all of the counterclaims as meritless and assessing costs pursuant to CPLR 8303-a for frivolous practice.
Defendants oppose the plaintiffs' motion and cross-move pursuant to CPLR §3212 for summary judgment dismissing this action and for sanctions based on frivolous motion practice.
Pursuant to New York County Courthouse Procedures, Procedure II, Filing Fee on Motions and Cross-Motions: "A motion fee must be paid on motions made in writing by notice of motion, order to show cause or ex parte after the commencement of an action....The fee must be paid on written cross-motions filed in opposition to motions on which a fee is required ..."
Plaintiffs' submitted a document labeled as a "motion, " pursuant to CPLR §3211[b], seeking to dismiss the defendants' second and third affirmative defenses; for partial summary judgment pursuant to CPLR §3212, and pursuant to CPLR §4317[b] for the appointment of a special referee. The "motion, " prepared by different attorneys from those attorneys on the underlying motion, has the same return date, but was not filed as a separate motion with the clerk's office. There was no filing fee paid, or motion sequence number assigned to it. The plaintiffs' "motion" was merely submitted to the Court simultaneously with the underlying motion for summary judgment. Motion practice that avoids filing fees and proper Courthouse procedures for the submission of papers, shall not be condoned. This Court will not address the merits of the relief sought in plaintiffs' "motion."
This action stems from Labor Law 11 work done to a building located at 1080 Madison Avenue, New York, NY. Defendants own and reside in units 9A and 9B. The contractors and agents retained by plaintiffs used defendants' terrace as a staging area for the period from March of 2011 through October of 2011. Defendants claim that plaintiffs' contractors and agents substantially damaged items placed on the terrace; the terrace doors; and altered the terrace's pitch causing water damage to the units.
On April 11, 2011, plaintiffs brought this action seeking a judgment in the amount of $17, 846.48 against defendants for damages based on failure to pay common charges; additional common charges; special assessments for condominium Units 9A and 9B; additional amounts as they become due and owing after April, 2011; reasonable rental value from October 1, 2010 to date of entry of a judgment; the appointment of a receiver and attorneys fees (Mot., Exh. A). On April 27, 2011, defendants interposed an answer which asserted affirmative defenses and included five counterclaims (Mot., Exh. B). On May 16, 2011, plaintiffs, by different counsel, replied to the counterclaims, with the affirmative defense of failure to state a cause of action (Mot., Exh. C).
Plaintiffs, by pre-discovery motions, sought essentially the same relief currently being sought under motion sequence 004. Defendants cross-moved to amend the answer. The Decision and Order of this Court dated November 28, 2011, denied both of plaintiffs' motions. Defendants' cross-motion was granted only to the extent that the Answer was amended as to the first, second and sixth counterclaims and the second, third, eighth and ninth affirmative defenses. The remainder of the proposed amended answer was severed and dismissed (Cross-Mot., Exh. A).
The second and third affirmative defenses assert that the defendants do not owe the money to plaintiff, that any money owed to plaintiff has been paid, and the amounts alleged in the complaint are not accurate. The eight affirmative defense and first counterclaim allege nuisance; the ninth affirmative defense and second counterclaim allege breach of contract; and the sixth counterclaim alleges property damage (Cross-Mot., Exh. E). Discovery was conducted and on January 23, 2012, plaintiffs filed the note of issue.
It is well established that once a motion for summary judgment is denied, subsequent motions seeking the same relief must also be denied. The use of "successive fragmentary motions" is improper, there cannot be any reservation of issues for subsequent summary judgment motions (Phoenix Four Inc. v. Albertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 [N.Y.A.D. 1st Dept., 1997] and Turner Construction Co. v. H.E.L.P. Social Service Corp., 43 A.D.3d 731, 841 N.Y.S.2d 448 [N.Y.A.D. 1st Dept., 2007]). The exception to the rule prohibiting successive summary judgment motions, is when there is newly discovered evidence or sufficient cause shown (NYP Holdings v. McClier Corp., 83 A.D.3d 426, 921 N.Y.S.2d 35 [N.Y.A.D. 1st Dept., 2011]). Newly discovered evidence requires a showing of due diligence in attempting to find the evidence and its unavailability before the submission and adjudication of the prior motion (Jones v. 636 Holding Corp., 73 A.D .3d 409, 899 N.Y.S.2d 605 [N.Y.A.D. 1st Dept., 2010]). Sufficient cause shown applies when the record demonstrates that the matter can be disposed of without burdening the resources of the court. A subsequent clarifying decision, is a basis to find good cause shown (Varsity Transit, Inc. v. Board of Educ, 300 A.D.2d 38, 752 N.Y.S.2d 603 [N.Y.A.D. 1st Dept., 2002]).
In order to prevail on a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 89 N.Y.2d 833, 675 N.E.2d 548, 652 N.Y.S.2d 723 ). Once the moving party has satisfied these standards, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence in admissible form, sufficient to ...