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I

CIT);:- <COURT OF Y N ERS

Present:Index No. LT-4S82-09

HOD _ .lI.R'T'HTTR.T nnRZlH TTT n~~~. ~a~uary 28, 2014

-_. ._---_._-_._.--._ ... -....

~~ -~ -f--. -----.The following papers numbered 1 to 59 wer~ read and considered on thepetitioner's motion pursuant to ~PLR §3126

11

DECISION ANDORDER

Notice of Motion and Cross MotiO+ Affidavi .slAnnexed 1-2,10-12, 39-40Ord7r to .Show C;~tuse.and.Affidav~t~ Annexed.+-i-rlI-~-------------Af f Lrrnat;Lorr/ Af f~daV ~ ts In Oppos l t aon --+-I +1-11-1_· :::..3=1.L...-=3=5-'--=S-=1=-- --,Summons and Complaint 1 1

Replying Affidavits IFiled Papers 9 29-30 4c-BOExhibits 3-8 13-28 32-34Memorandum of -Law II

Th t .t . d a Subp!ena. ·upo·n l'll~ d t d di s the pe l loner serve H~ respon eneman ~n e

original or a true copy of the prolrietarylEa ~ between the parties. The

subpoena w s denied by Decision and

13, 201J

1

The Decision and Order

the subpo ::.1 :i no later than October 3,

respondent's motion to quash the

Order (Daly, J.) dated Septembe

directed the respondent comply wit!

2013.

I PaDers Numbered

S3 5752 56 59

36-38 41-48 54-55 58

Rather than turn over the documenb.: \lin his possession, the

:spondent on October 3, 2013 sent letter tc he petitioner alleging he

the

the amendments to the lease. The pet' t'qner' now moves for an Order

e respondent for his willful

was unable to comply. The res!ondent al e~ed he does not possess all of

pursuant to C.P.L.R. §3l26. penalizing

and contumacious refusal to COiplY with e Court's order. The petitioner

also seeks the Court order forma lease annexed to the

petitioner's motion be admitted as the ~ oprietary lease between the

(1) that the Board did not

tenamend th

althorize

tl Article

a second "cross motion" on

parties. Id.

The respondent opposed the motion a:d cross moved to amend his

answer and for an order direlting the p titioner to, comply with the

respondent's subpoena. The res

the, date the petitioner's mot.i.l n was sc

relief sought in each of tlesemoti

led for submission. As the

In support of his motion

overlaps, the Court has

consolidated same for clarity.

nswer, the respondent argued

e commencement of the above

Haynes, Esq is

7 of the By-Laws (2)entitled proceedings pursuant

that Andre not to represent the

petitioner(3)that the above enbitled retaliatory and in

response to the respondent's at t mpts, to 0 tl k' n information pertaining to\ ,'t, . i I

the eviction of a former shareholder, end (4) that warranty of

habitability claims have aris n as, the I ~etitioner has ignored the

"AIthough leave t.o amend a enerally should be freely

respondent's requests for repairs

granted (see C.P.L.R. 3025(b), es not obtain on the eve of

trial. In such case, there is a heavy bur on [the movants] to show

extraordinary circumstances to justify amF=n~mentby submitting affidavits

which set forth the recent change of I ircumstances justifying the

amendment and otherwise givinc an 'adequ t· explanation for the delay."

Sweeney v. Purcell Constr. colp., 20 A. J. 3d 872,873 (4~ Dept., 2005)

citing Jablonski v. County of krie, 286 ~.p. 2d 927, 928 (2001).

The respondent filed his motion tc amend approximately one week

"

prior to the date the above ,ntitled met er was scheduled for trial.

Alrose Oceanside LLC v. Muel]Ler, 81 A D 3d 574 (2nd Dept., 2011) i

CaDstone Enters. of Port ches-:br v Cour:r:v of Westchester, 272 A.D. 2d

427 (2nd Dept., 2000) The resprndent has fiiled to provide a reasonable

excuse for his delay in seekin~ to amend a~dhas failed to set forth a

change In circumstances justi~ying the amendment s . The respondent' s

motion is denied.. ..~~.:..~,

I

Notwithstanding the forego'ng, the r s10ndent is precluded from the

various theories he seeks to assert. As th~ espondent does not reside in

the premises and as the above entitled ratter is a holdover the

respondent is precluded from asae r t inq wa r:mty of habitability claims.

Blumenthal ex. reI. Blumenthal v. Chwas 2003 WL 222884 (lst Dept.,

2003); Goethal Mobile Park Iv. State Is. Meadowbrook Park civ.'. J .

Assn., 208 A.D. 2d 896, 898 (2nd I Dept., r:9~); Halkedis v. Two East End

Avenue Apartment Corp., 161 A.D 2d 281 ( Sj Dept., 1990).

The respondent's argumeits

representation of thepetitionJr

with . ;r::~spectI

(contai 'le 1 in both the respondent' s

to Andre Haynes'

first and second cross motion) a e devoid ciF flerit. The respondent raises

this defense now, at a time when Mr. Hayne s no longer affiliated with1\

i~lI 11\

the firm and several years a~ter Mr. a es appeared on behalf of the

t't' h hor i ,I f· I b h . d t "pe 1 loner. T e aut orLzat Lon re erre 0 y t e respon en pe rrrut s

certain members of the Law kirm repr se ting the petitioner to sign

predicate notices and petitiJns on beh 1 I of the petitioner. There is

:::h:::

m

to preclude the maintlnanceof 1\roceeding by an associate o.f

The responden

Those branches of the resRondent's obion which sought to compel theI

petitioner to comply with his subpoena, issue sanctions and to holdI . .

the petitioner in contempt ar denied. the respondent's third

motion_to compel and for sanctions. ,rior motions were denied by

ned September 13, 2013. This isDecisions and Orders dated May 13, 2013

also the respondent's second m,tion to h

The Court in the DeCiSi1n dated

respondent's contempt application for the

wi th JUdiciary Law s 756 . The ci urt hel'~

the petitioner in contempt.

13, 2013 den:Led the

failure to comply

to the accused in at least eigh

h.t the law requires a notice

d type as follows: "WARNING:

YOUR FAILURE TO APPEAR IN COURT MAYRESUL IN YOUR IMMEDIATE ARREST AND

IMPRISONMENT FOR CONTEMPT OF CO RT." Id. respondent failed a s~cond

time to comply with the r by depriving the Court of

I 'II' 2d[nc v. Wl lams, 302 A.D. .

alleged that prior to the

jurisdiction. Matter of P

466 (2nd Dept., 2003).

In his second cross motion

commencement of the above entitl , the respondent organized

~shareholders to demand a meeting with the of Directors to discuss

several issues. coininenc Article 78 proceeding'., .

against the petitioner in the Supr~l11~: .in an attempt to resolve

these issues. In the course o~ that pro e .ding, documents were provided

to the respondent by the petttioner. T 1 respondent seeks to include

arguments and information from that proc e ing in the present matter and

obligation to produce theargues that; the petitioner as under

to the Court in the presentdocuments turned over in the Article 7

matter. I

The.Court has reviewed tht responde

the documents referred to pertain to i

Court. Fur,thermore, these docuJents

t s application and finds that

the respondent asserts. Rather,

s es which are not before the

amendments to the By-Laws as

s clearly indicate that they

are amendments to the Offering Plan of t e cooperative.

An Offering Plan is provided to each 0 the residents of a building

when the building is converting bo a coope la ive.Generally, the OfferingI

Plan is the sponsor's statement of the te ms and conditions of the sale

of each apartment. It is a separate and i1tinct document from the By-

Laws of the Corporation and the 10use Rule s the respondent's subpoena

did not seek copies of the Offrring PIa ith amendments, and as the

respondent has failed to demonstrate these dlcuments are relevant to the

present proceeding', the respond nt I s:::appl.c tion is denied.'( t

Finally, that branch of th respond 's motion which sought theI .

J ied. The respondent argu~sdismissal of the above entitled ction is

in essence that the petitioner's to produce a copy of the

~ proprietary lease between the pa ,ties enti respondent to sublet.

This bold assertion serves only to suggest t the respondent's failure

Turning then to the petitioner's 0 ion, same is granted in part.

When a party willfully, contlmaciouSlY 0 in bad faith fails to comply\ . . .

with a discovery order, penalties unde .P.L.R. §3126 are warranted.

Allen v. Calleja, 56 A.D. 3d 197, 49S ( ~ Dept., 200S).

Conduct is willful and ~ontumaciO' s when a party fails to comply

with subpoenas and court orders pertaini g to discovery without offering

d \ ,I ~an a equate excuse for the iallure to omply. Workman v. Town or

Southhampton, 69 A.D. 3d 619, 620 (2nd De t., 2010). The sanctions to be

applied are within the court,l discreti and may include striking a

the respondent boldly asserts his.entitleme t to dismissal

, , .th t th -: I tl bl' hthe pe tLt Lone r Wl ou e l.!ase~.:.cann esta 1S

prohibited, gi~es the Court pau e. This

to comply with the producti n of his

willful, contumacious and in bad faith.

pleading, precluding the party from intr

claim or ordering the i~sues nesolved.. \" .~. ;:... ':., . .;.'

A.D. 3d 1116 (2~ Dept., 2010); C.P.L~·R.

to

The respondent failed to slbmit a re

comply with the Court's ordel. Althou

is unable to comply, he doJ not reprhe

diligent search of its records aid turned

its possession." Caruso v. Malang, 234 A.D.I I

There is no dispute that the respondent h s

the lease documerrt s in his posseJ ion to thl

failed to comply with this Court's order

Io Y of the proprietary lease 1S

evidence or opposing a

State of New York, 73

for his failure

h the respondent alleged that

slnt that he "(clonducted a

0, ~I all requested documents in

(2nd Dept. ( 1996).

failed to turn over any of

'etitioner. The fact that

as he contends

subletting was

made after he

refused to turn over his

copy of the proprietary lease.

I

Therefore, the responde t's answ r and counterclaims are hereby

stricken. Furthermore, the respondent is precluded from producing

the

That branch of the petitidner's mot·on which sought to admit the pro

forma lease as that between tie par.t Les denied without prejudice to

to be

renew. The best evidence rule "[r]equire.

writing where its

,he production of an originalI "

and soughtcontents are In

proven."Schozer v. William Penn Life Ins.

642 (1994) citing Sirico v. cobto, 67 Mi

" I"York Co., 1971). "[S]econdary evidence 0

original may be admitted upon

court that the proponent of the

o. of N.Y., 84 N.Y. 2d 639,

. 2d 636, 637 (Civ. Ct., New

he contents of an unproduced

threshold f ctual findings by the trial

substitute hi s sufficiently explained "the,

des~ruction in bad faith. Loss may be e.. ", .. ".;

.", -: .. ~ ..

last had custody

unavailability of the primary evidence a as not procured its loss or

lished upon a showing of a

diligent search in the location here the

been kept, and through the test'mony

ument was last known to have

of the original." Id. (Internal citations

The petitioner must firs

itted) .

establi loss of the original

"proprietary lease through an intiividual personal knowledge of the

facts and circumstances. To date "the petit'o er has failed to submit any

such documentation, The affidavlt of Rosa ~

of Smith, Buss and Jacobs LLP i insuffic:el t for this purpose.

tsardis, who is an employee

This matter will appear an the Cour r » calendar for inquest on April

16, 2014 at 9:30 A.M. in Part IV of the

Dated andEntered:

EWS/ks

olrt. Appearances are required.I

1;[,r ...i/. '..' .;;?, ,

./ .

,

Court

II.

I1,1

III!\1,111