Motion to Strike Initial Pleading in Rusteem Louis Tala v. Fortham House Realty Corp., Narrows Management| Trellis.Law

On August 25, 2023 a Motion-Secondary was filed involving a dispute between Rusteem Louis Tala, and Fortham House Realty Corp., Narrows Management, for Real Property - Other (Cooperative Owner Rights) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 01/18/2024 03:15 PM INDEX NO. 524731/2023
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 01/18/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------------X
RUSTEEM LOUIS TALA, Index No. 524731/2023

Plaintiff, AFFIRMATION IN
OPPOSITION TO PLAINTIFF’S
- against - MOTION TO STRIKE AND IN
SUPPORT OF DEFENDANTS’
FORTHAM HOUSE REALTY CORP. & NARROWS CROSS-MOTION TO DISMISS
MANAGEMENT,

Defendants.
------------------------------------------------------------------------X

PATRICK F. PALLADINO, an attorney duly admitted to practice law before the Courts

of this State, affirms the following under penalties of perjury:

1. I am a member of the law firm of Milber Makris Plousadis & Seiden, LLP, attorneys

for Defendants, FORTHAM HOUSE REALTY CORP. and NARROWS MANAGEMENT

(hereinafter collectively “Defendants”). I am fully familiar with the facts and circumstances that

are the subject of this motion.

2. I submit this affirmation, and the exhibits annexed hereto, and the accompanying

memorandum of law of Patrick F. Palladino, Esq., dated January 18, 2024, all in opposition of

Plaintiff’s motion for an Order: (i) dismissing or otherwise striking Defendants’ affirmative

defenses; (ii) dismissing Defendants’ counterclaims pursuant to CPLR § 3013, 3018(b), 3211(b)

and 3212 et seq; and (iii) imposing sanctions; and in support of Defendants’ cross-motion pursuant

to CPLR R. 3211(a)(1), (5) and (7), or, in the alternative, CPLR R. 3211(c), to dismiss Plaintiff’s

Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Twelfth Causes of Action; and for

such other, further, and different relief as this Honorable Court may deem just, proper, and

equitable.

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3. As a threshold matter, Plaintiff’s motion must be denied as defective and moot.

First, the motion is defective as Plaintiff failed to annex as an exhibit to his motion papers the

Defendants’ Answer to which he seeks to strike/dismiss affirmative defenses and counterclaims.

Secondly, Plaintiff’s motion is defective and moot because subsequent to Plaintiff’s service and

filing of his motion, Defendants timely served an Amended Answer, removing several affirmative

defenses and amending other affirmative defenses and counterclaims. (A copy of the Amended

Answer is annexed hereto as Exhibit “A”). As a result, the original Answer upon which Plaintiff’s

motion is based is a nullity, thus rendering Plaintiff’s motion defective and moot. In response to

the Amended Answer, Plaintiff filed a Verified Reply and Answer to Counterclaims dated October

11, 2023, a copy of which is annexed hereto as Exhibit “B”.

4. This action arises out of alleged property and other damages suffered by Plaintiff

Rusteem Louis Tala (“Plaintiff”) as a result of a purported failure by Defendants Fortham House

Realty Corp. (“Fortham House”) and Narrows Management (“Management”) to address certain

water leaks.

5. In addition to failing to timely make his mortgage payments, resulting in his lender

initiating a foreclosure of Plaintiff’s unit, Plaintiff also refused to remit common charges for his

residential cooperative unit in violation of Plaintiff’s Proprietary Lease and the other governing

documents of Defendant, Fortham House.

6. In response to Plaintiff’s breach and non-payment, on or about April 25, 2023,

Fortham House initiated a Civil Non-Payment Proceeding against Plaintiff in Housing Court which

is still being litigated. (See Affirmation of Vincent Miletti, Esq. dated October 5, 2023 [“Miletti

Aff.] at Exhibit P). Plaintiff asserted a cornucopia of affirmative defenses and counterclaims in

that action. (See Miletti Aff. at Exhibit Q).

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7. In sum, Plaintiff’s motion to strike/dismiss must be denied in its entirety and

Defendants’ cross-motion to dismiss must be granted in its entirety for a number of reasons as

outlined below.

SUMMARY OF THE ARGUMENTS

POINT I

PLAINTIFF’S MOTION TO DISMISS IS DEFECTIVE AS IT LACKS A COPY OF THE
ANSWER AND IS MOOT DUE TO THE SERVICE OF AN AMENDED ANSWER,
WITHDRAWING CERTAIN DEFENSES, AMENDING OTHER DEFENSES
8. Subsequent to Plaintiff’s service of his motion to dismiss various affirmative

defenses and counterclaims in Defendants’ Answer, Defendant served an Amended Answer,

withdrawing several affirmative defenses and amending/supplementing others. (See Exhibit “A”).

As a result, Plaintiff’s motion to dismiss the affirmative defenses and counterclaims contained

within Defendants’ original Answer is now moot and must be denied as academic. Additionally,

Plaintiff failed to annex a copy of Defendants’ Answer to his motion papers, thus requiring the

denial of the motion as defective. As a result, Plaintiff’s motion to dismiss must be denied in its

entirety.

POINT II

PLAINTIFF’S ARGUMENTS B, D, E, F, G, H AND K WITHIN HIS MOTION TO
DISMISS MUST BE DENIED AS THOSE DEFENSES WERE WITHDRAWN BY
DEFENDANTS AND ARE NOT CONTAINED IN DEFENDANTS’ AMENDED
ANSWER

9. Subsequent to Plaintiff’s service of his motion to dismiss, Defendants served an

Amended Answer withdrawing various affirmative defenses and amending the remainder of the

defenses and counterclaims. (See Exhibit “A”). As a result of the amendment, Defendants’

Amended Answer no longer contains the affirmative defenses Plaintiff seeks to dismiss at his

arguments “B” (failure to meet the requirements of NYBCL 626(c)); “D” (defense based upon

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CPLR Article 16); “E” (failure to join necessary parties); “F” (failure to obtain personal

jurisdiction); “G” (failure to comply with service of process rules); “H” (plaintiff lacks standing);

and “K” (plaintiff has breached the contract). (See Palladino Aff. at Exhibit “A”). As a result,

Plaintiff’s motion is moot as to those arguments and must be denied.

POINT III

PLAINTIFF IS NOT ENTITLED TO A DISMISSAL OF DEFENDANTS’
REMAINING AFFIRMATIVE DEFENSES

10. Plaintiff has failed to demonstrate that the affirmative defenses are meritless, or the

absence of any dispute regarding the affirmative defenses, and as such, Plaintiff’s motion must be

denied.

11. Failure to State a Cause of Action - Defendants properly asserted the affirmative

defense of failure to state a cause of action in their Amended Complaint. As demonstrated in the

below arguments, Plaintiff, in his Complaint, fails to state a cause of action as to a multitude of his

claims, thus requiring the dismissal of those claims. For the sake of brevity, Defendants refer to

their arguments numbered VI through XII to demonstrate Plaintiff’s outright failure to state a cause

of action.

12. Statute of Limitations – Through Plaintiff’s own allegations in the Complaint,

Plaintiff establishes that several claims fall outside the applicable statute of limitations for this

matter, and, although Plaintiff alleges continuous tort doctrine applies, case law states that

discovery is required to decipher whether that is accurate.

13. Breaches by other Parties - As outright admitted by Plaintiff in the Complaint,

Plaintiff had a tenant living in his unit, and absolutely no discovery has occurred in this action.

(See Miletti Aff. at Exhibit R). It remains unclear whether that tenant may have caused or created

any of the issues experienced by Plaintiff, as well as the tenant’s failure to cooperate with the

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Defendants in an attempt to repair the issues. As a result, discovery will be required in this action

to decipher the tenant’s involvement in the issues at hand, particularly with regard to plaintiff’s

tort claims such as negligence and nuisance. As a result, this affirmative defense may not be

dismissed.

14. Business Judgment Rule – As a result of the allegations asserted in the Complaint,

the Business Judgment Rule may potentially apply in this action, and such will be determined at

the conclusion of discovery.

POINT IV

A DISMISSAL OF DEFENDANTS’ BREACH OF CONTRACT COUNTERCLAIM IS
NOT WARRANTED

15. The allegations in the Complaint, as well as the documentary evidence submitted

in this action, as well as the Housing Court action, demonstrate that Plaintiff has failed to remit

common charges and fees to the Defendants, which is required pursuant to his Proprietary Lease

and other governing documents, thus constituting a breach of contract.

POINT V
IMPOSING SANCTIONS UPON DEFENDANT IS NOT WARRANTED

16. Herein, Defendants have not made any motions up until the within cross-motion,

and had only merely served an Answer to the Complaint at the time of Plaintiff’s application for

sanctions. If anything, it is Plaintiff who has engaged in frivolous conduct for making his

application for sanctions after Defendants merely appeared and have done almost nothing.

Moreover, it is clear from the arguments made by Defendants for a dismissal of claims, that it is

the Plaintiff that has brought a bevy of meritless and duplicative frivolous claims. Thus, Plaintiff’s

application for sanctions must be denied in its entirety.

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POINT VI

PLAINTIFF’S EIGHTH CAUSE OF ACTION FOR DIMINUTION OF VALUE MUST
BE DISMISSED AS DIMINUTION OF VALUE IS A COMPONENT OF DAMAGES
AND NOT AN INDEPENDENT CLAIM

17. Plaintiff has improperly asserted an independent claim for diminution of value at

his eighth cause of action, and as such, the eight cause of action must be dismissed as there exists

no independent claim for diminution of value as it is merely a component of damages.

POINT VII

PLAINTIFF’S FIFTH CAUSE OF ACTION FOR “ATTORNEYS’ FEES” MUST BE
DISMISSED AS SUCH IS A COMPONENT OF DAMAGES AND NOT AN
INDEPENDENT CLAIM

18. Similar to the argument above related to diminution in value, Plaintiff’s

independent claim for attorneys' fees must be dismissed since New York law does not recognize a

free-standing cause of action for attorneys' fees.

POINT VIII

PLAINTIFF’S CAUSES OF ACTION FOR NUISANCE ARE DUPLICATIVE OF HIS
NEGLIGENCE CAUSES OF ACTION REQUIRING DISMISSAL, AND THE SIXTH
CAUSE OF ACTION FOR PRIVATE NUISANCE IS DUPLICATIVE OF PLAINTIFF’S
SECOND CAUSE OF ACTION FOR NUISANCE, REQUIRING THE DISMISSAL OF
THE NUISANCE CLAIMS

19. First and foremost, Plaintiff’s two nuisance claims, the second and sixth causes of

action, are duplicative of his negligence claims, and as such, must be dismissed. Notwithstanding

the above, Plaintiff’s two nuisance claims are duplicative of each other, thus requiring dismissal

of one of the two nuisance claims.

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POINT IX

PLAINTIFF’S TENTH CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY
MUST BE DISMISSED AS COOPERATIVE CORPORATIONS DUE NOT OWE A
FIDUCIARY DUTY TO SHAREHOLDERS

20. Plaintiff’s tenth cause of action for breach of fiduciary duty must be dismissed as a

matter of law since, contrary to Plaintiff’s blatantly false assertion, cooperative corporations do

not owe a fiduciary duty to their shareholders.

POINT X

PLAINTIFF’S SEVENTH CAUSE OF ACTION FOR CONSTRUCTIVE EVICTION
MUST BE DISMISSED AS DUPLICATIVE OF HIS NINTH CAUSE OF ACTION FOR
BREACH OF THE IMPLIED WARRANTY OF HABITABILITY AND HIS
NEGLIGENCE CLAIMS AND SUCH IS ONLY DEFENSIVE

21. Plaintiff may not maintain his seventh cause of action for constructive eviction, as

it is, as a matter of law, duplicative of his ninth cause of action for breach of the implied warranty

of habitability. Moreover, such a claim is only defensive and is not permitted to be asserted

affirmatively in this action. As a result, Plaintiff’s seventh cause of action for constructive eviction

must be dismissed.

POINT XI

PLAINTIFF’S TWO SEPARATE CAUSES OF ACTION FOR NEGLIGENCE
MUST BE DISMISSED AS THEY ARE DUPLICATIVE OF HIS BREACH OF
CONTRACT CLAIM

22. Plaintiff has asserted a breach of contract claim along with two separate claims for

negligence, yet all allege the same allegations and damages, thus requiring the dismissal of the

negligence claims as duplicative.

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POINT XII

TO THE EXTENT THE PLAINTIFFS’ CAUSE OF ACTION FOR NEGLIGENCE IS
NOT DISMISSED IN ITS ENTIRETY, IT SHOULD BE DISMISSED AS IT IS
DUPLICATIVE OF THE OTHER NEGLIGENCE CLAIMS

23. Defendant’s claims for negligence/gross negligence must be dismissed as a matter

of law as it is duplicative of several other causes of action for negligence, and due to Defendant’s

failure to properly plead the claim.

24. Accordingly, for the reasons set forth above and in the accompanying papers, the

Plaintiff’s motion should be denied in its entirety, and Defendants’ cross-motion must be granted

in its entirety.

WHEREFORE, it is respectfully requested that plaintiff’s motion be denied in its entirety,

and that Defendants’ cross-motion be granted in its entirety, and that This Honorable Court issue

such other and further relief as it deems just and proper.

Dated: Woodbury, New York
January 18, 2024

_____________________________
Patrick F. Palladino

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CERTIFICATION STATEMENT
PURSUANT TO 22 NYCRR § 202.8-b

The total number of words in the Affirmation in Opposition to Plaintiff’s Motion and in

Support of Defendants’ Cross-motion, inclusive of point headings and footnotes, and exclusive of

pages containing the Certification Statement, proof of service, or any authorized addendum

containing statutes, rules and regulations, is 1,890. The foregoing complies with the word count

limit of 4,200 pursuant to 22 NYCRR 202.8-b(a).

Dated: Woodbury, New York
January 18, 2024
MILBER MAKRIS PLOUSADIS
& SEIDEN, LLP

By:
Patrick F. Palladino, Esq.
Attorneys for Defendants
Fortham House Realty Corp.
and Narrows Management
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
Tel: (516) 870-1180
File No.: 478-25146
Email: ppalladino@milbermakris.com

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Case Info

Judge

Carolyn E Wade Track Judge’s New Case

Case No.

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Document Filed Date

January 18, 2024

Case Filing Date

August 25, 2023

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Motion-Secondary: Rusteem Louis Tala v. Fortham House Realty Corp., Narrows Management

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