Preview
FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------X
~
SHIKHA AKTER, RAFIQUL BHUIYON, ROCKSHANA
BEGUM, FRANCES HOLLAND, MD. ATAUL HOQUE, Index No.: 704563/2018
ANWAR HOSSAIN, MIRBAHAR JAHANGIR
MD. ASSADUZZAMAN ALI-
HOSSAIN, KHAN,
~ ~
ASHRAF LODI, NURUN NAHAR, MOSAMMAT
MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR
RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN,
Plaintiffs,
-against-
ZARA REALTY HOLDING CORP., HILLSIDE PARK
168, LLC, AND ANTHONY SUBRAJ,
Defendants.
~~~~~~~ ~
------------------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF ZARA REALTY HOLDING CORP. AND
HILLSIDE PARK 168, LLC'S CROSS-MOTION FOR LEAVE TO REARGUE THE
arnvvnar vn avoarroo ar, n a ++ram PLAINTIFFS' nor vrarr, avonnvrarv r r, ior.
MOTION TO DISMISS REGARDING ON-TIME DISCOUNT LEASE
PROVISION CLAIMS AND THE CLAIMS OF PLAINTIFFS ASSADUZZAMAN KHAN,
NURUN NAHAR AND MD SYFUR RAHMAN
WOOD SMITH HENNING & BERMAN LLP
Michelle Arbitrio, Esq.
Christopher J. Seusing, Esq.
Leah A. Henry, Esq.
Attorneys for Defendants
ZARA REALTY HOLDING CORP. and
HILLSIDE PARK 168, LLC
18th
685 Third Avenue, 18 Floor
New York, NY 10017
(212) 999-7100
MArbitrio@wshblaw.com
CSeusing@wshblaw.com
LHenry@wshblaw.com
LEGAL:10916-0009/9269946.1
LEGAL:109164009/9269946.1
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PRELIMINARY STATEMENT
Defendants respectfully seek leave to reargue 1) the Court's denial of their Motion to
Dismiss the claims of Plaintiffs Assaduzzaman Khan, Nurun Nahar and Md. Syfur Rahman pursuant
Plaintiffs'
to C.P.L.R. § 3211(a)(4) and 2) the denial of the Motion to Dismiss Plaintiffs claims related to the
on-time discount lease provisions pursuant to C.P.L.R. § 3211(a)(7). Specifically, this Court relied
Plaintiffs'
upon Plaintiffs misstatement of the standard of dismissal under C.P.L.R. § 3211(a)(4) when itfound
that the dismissal of three plaintiffs from this matter would somehow prejudice the claims of the
remaining twelve plaintiffs. Neither the record nor controlling case law support such a proposition,
and the claims of these three Plaintiffs should be dismissed on grounds that they have identical
claims pending before the DHCR and the Civil Court. Additionally, the Court incorrectly held that
Defendants'
the Plaintiffs disputed one of arguments in the Motion to Dismiss when in fact there
Plaintiffs'
was no such dispute. Specifically, Defendants argued that claims related to the "on-time
discount" Plaintiffs' Plaintiffs'
provisions in leases should be dismised as moot since current leases,
appended to the motion to dismiss, no longer contained those provisions. The Court did not consider
the mootness argument claiming that Plaintiffs disputed this argument, however, Plaintiffs did not
argue in their Opposition that their current leases contained on-time discounts. Accordingly,
Defendants respectfully request leave to reargue the branches of the Motion to Dismiss discussed
above which were previously denied.
ARGUMENT
L Legal Standard for Motion for Leave to Reargue
A motion for leave to reargue shall be based upon "matters of fact or law allegedly
motion."
overlooked or misapprehended by the court in determining the prior See CPLR § 2221(d).
The misapplication of controlling law and a mistaken analysis and conclusion are grounds for leave
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to reargue a motion.SeeGrimmv.Bailey, 105 A.D. 3d 703 (2d Dep't, 2013);CaringProfessionals,
Inc.v.Landa, 152 A.D. 3d 738 (2d Dep't, 2017).
Defendants'
H. The Court Mistakenly Held that Plaintiffs Disputed Argument that the
On-Time Discount Provisions are No Longer Contained in Plaintiffs Leases, thus Those
Claims are Moot and Should be Dismissed.
Plaintiffs' discount"
current leases do not contain the "on-time provisions at issue in the
Amended Complaint, accordingly those claims should be dismissed as moot. Plaintiffs do not
dispute this in their Opposition to the Motion to Dismiss, and the Court's finding that the Plaintiffs
did so dispute was incorrect. Specifically, in the Order on the Motion to Dismiss, this Court stated
"whether the [on-time discount rent provision] issue is moot because, as the defendants contend, the
plaintiffs' plaintiffs."
current leases do not contain such provisions isdisputedbyplaintiffs."See Order attached
Defendants'
hereto as Exhibit A at pg. 7. The Court did not reach mootness argument because of
this incorrect finding. However, Plaintiffs did not claim in their Opposition to the Motion to Dismiss
Plaintiffs'
that their current leases contain on-time discount provisions.See Plaintiffs Memorandum of Law in
Defendants'
Opposition to Motion to Dismiss attached to the Seusing Affirmation as Exhibit B.
Defendants' discount'
Rather, Plaintiffs argued that "inserted 'on-time clauses in leases with
Akter,"
Plaintiffs Maria Velasquez, S.M. Zaman, Md. Syfur Rahman, Nurun Nahar, and Shikah
referring to past conduct, but Plaintiffs do not argue that their current leases contain those
provisions.See Exhibit 8 at pgs. 17-18.
This is an important distinction because Plaintiffs seek in their Amended Complaint
monetary damages and a "permanent injunction requiring Defendants to cease collecting or
tenants' rent."
attempting to collect amounts in excess of legally collectible rent."See Verified Amended
Complaint attached to Seusing Affirmation as Exhibit C. Since the Plaintiffs current leases do not
contain on-time discount provisions, there are no grounds for monetary damages or a permanent
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Plaintiffs'
injunction. claims related to these lease provisions are moot because itis undisputed by
Plaintiffs that these provisions are no longer in effect. Accordingly, these claims should be
dismissed.
III.The Court Misapplied Case Law Incorrectly Cited by Plaintiffs in their Opposition to
the Motion to Dismiss Regarding the Standard for Dismissal of Duplicate Pending
Claims Pursuant to CPLR § 3211(a)(4).
Defendants'
branch of the motion seeking dismissal of the claims of Plaintiffs Azzaduzzaman
Khan, Nurun Nahar and Md. Syfur Rahman should have been granted because the substantial
identity element is satisfied and the additional plaintiffs would not be precluded from redress for
their claims in the instant matter. Pursuant to CPLR 3211(a)(4), a party may move for judgment
dismissing one or more causes of action asserted against him on the grounds that there is another
action pending between the same parties for the same cause of action in another judicial proceeding.
See CPLR 3211(a)(4). A court may dismiss such an action when there is (1) a substantial identity of
the parties for the same cause of action and (2) the two actions are sufficiently similar and the relief
sought is the same or substantially the same. Montalvo v.Air Dock Systems, 37 A.D.3d 567, 567 (2d
Dep't 2007).
Defendants' Plaintiffs'
Here, the Court denied Motion to Dismiss the above claims finding
that because "the instant action is brought by numerous other tenants...there is not a substantial
matters."
identity of parties here with those of the earlier See Exhibit A. The Court further held that
dismissal on CPLR § 3211(a)(4) grounds "would also be inappropriate because these additional
tenants would be without redress once DHCR and the Civil Court decided the claims of Rahman,
actions."
Nahar and Assaduzzaman [Khan] unless the additional tenants began their own Id.
However, the Court's analysis misapprehends the applicable law on two grounds. First, a motion
under CPLR 3211(a)(4) may prevail despite the presence of additional parties to the instant action
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even if those additional parties were not involved in the prior pending action. See White Light
(1" ("
Productions, Inc. v. On the Scene Productions, Inc., 231 A.D.2d 90, 94 Dep't 1997) ("The
presence of additional parties, however, will not necessarily defeat a motion pursuant to CPLR
3211(a)(4) where, as here, both suits arise out of the same subject matter or series of alleged
wrongs.") [internal citations omitted] ; see also Case Capital Corp. v.Morgan Investments, Inc., 154
AD.2d 501 (2d Dep't 1989). As long as both suits arise out of the same subject matter or series of
alleged wrongs, a court may grant a CPLR 3211(a)(4) claim because the substantial identity and
sufficiently similar actions elements are both satisfied. White Light Productions, Inc., 231 A.D.2d at
94. Additionally, the dismissal of three of the plaintiffs in the current matter on CPLR 3211(a)(4)
grounds does not preclude the remaining thirteen plaintiffs from continuing with their claims here.
Assaduzzaman"
The presence of "numerous other tenants besides Rahman, Nahar and in this
matter, does not destroy the substantial identity of the parties prong for dismissal under CPLR
3211(a)(4). See Exhibit A at page 6. In Case Capital Corp. v.Morgan Investments, Inc., 154 AD.2d
plaintiffs'
501 (2d Dep't 1989), the Second Department affirmed the lower court's stay of the action
in New York based on the fact that there was another action pending in Baltimore County, Maryland
in which some of the present defendants were against the same present plaintiffs. The Second
Department reasoned that the substantial identity threshold in CPLR 3211(a)(4) does not require "a
parties,"
complete identity of the but instead, a substantial identity. Id. 501 ("it is the substantial
rather than complete identity of parties which is required to invoke that section."). Similarly, the
Defendants'
presence of twelve additional plaintiffs in this matter does not interfere with
establishment of substantial identity. The Court recognized that Plaintiffs Md. Syfur Rahman and
Nurun Nahar already have matters pending before DHCR consisting of claims against Defendants
for rent overcharges and improper lease clauses, just as claimed in the instant matter. See Exhibit A
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at page 6. Additionally, Plaintiff Md. Assaduzzaman Khan filed an answer and counterclaims in a
holdover proceeding pending against him in Civil Court raising identical claims to the ones asserted
in this instant action. Id.
Plaintiffs failed to provide any case law which supports a finding that when the quantity of
plaintiffs in the instant action exceeds the number of plaintiffs in the prior proceeding, the substantial
Defendants'
identity element is weakened. In their Brief in Opposition to Defendants Motion to Dismiss,
Plaintiffs cite to Breiterman v. Elmar Properties, Inc., 123 A.D.2d 735, 737 (2d Dep't 1986) and
Swartz v. Swartz, 142 A.D.3d 818, 821 (2d Dep't 2016) in an attempt to support a finding that the
number of plaintiffs influences the substantial identity element. Interestingly, in both cases, the
CPLR 3211(a)(4) arguments were rejected because the relief sought by plaintiffs were not
substantially the same relating to the second element of CPLR 3211(a)(4). See Breiterman, 123
A.D.2d 735 at 737 (finding that the CPLR 3211(a)(4) argument should be disregarded because the
cause of action did not arise out of the same actionable wrong); Swartz, 142 A.D.3d 818 at 822
(reasoning that there was no substantial identity and the relief sought was not the same because the
initial action against plaintiff s stepchildren in the pending divorce proceeding forplaintiff s right to
her equitable distribution differed from the instant action involving 36 additional parties who
allegedly engaged in tortious conduct).
Additionally, the dismissal of the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman has
no bearing on the claims of the remaining twelve defendants. Thus, the remaining defendants would
not be prejudiced in any manner. The Court relied on Dugan v. London Terrace Gardens, L.P., 34
Misc. 3d 1240(A) (N.Y. Sup. Ct. 2011) to support a finding that the remaining plaintiffs would be
without redress once the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman were decided.
However, in that case the lower court stated that the remaining Dugan plaintiffs would be without
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("
redress ifthe court decided to certify the class. Id. at *9. ("Even ifDHCR were to address the named
plaintiffs'
plaintiffs claims, there co-tenants would be without redress unless they commenced their own
actions. Although defendant may claim a class action is unnecessary, the need for a class action is
the court's and not DHCR's determination."). Further, that Court recognized that the specific issues
in that case, namely, retroactivity, statute of limitations and, legality of unilateral waiver, were not
within the expertise of DHCR, thus itwas inappropriate for the claims to be heard by DHCR which
has expertise in rent regulations and overcharge claims. Id. at *7.
Plaintiffs'
Even if Azzaduzzaman, Nahar and Rahman's claims continue to be heard by
DHCR and the Civil Court, the remaining plaintiffs in this suit can continue to seek redress in this
Court and are not otherwise prejudiced by the dismissal. Only the specific claims made by the
identified three plaintiffs would be deemed resolved and precluded from consideration in thisinstant
matter since they are currently being addressed by the DHCR and the Civil Court. Id. at
*9. Accordingly, the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman should be dismissed
pursuant to CPLR § 3211(a)(4) because there is a substantial identity of the parties between their
pending matters in the DHCR and Civil Court and the instant matter, and all of the actions are
sufficiently similar and the relief sought is the same or substantially the same. Montalvo v.Air Dock
Systems, 37 A.D.3d 567, 567 (2d Dep't 2007). Moreover, the claims made by the remaining
Plaintiffs would not be interfered with because they are not subject to dismissal under CPLR
3211(a)(4).
CONCLUSION
Defendants'
WHEREFORE, Defendants respectfully request thatthis Court Grant Motion for
Plaintiffs'
Leave to Reargue the Motion to Dismiss regarding Rent Overcharge claims pertaining to
the on-time discount lease provisions and the claims of Plaintiffs .
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Dated: New York, NY
May 30, 2018
Respectfully submitted,
WOOD SMITH HENNING & BERMAN LLP
By:
Michelle Arbitrio, Esq.
Christopher J. Seusing, Esq.
Leah A. Henry, Esq.
Attorneys for Defendants
ZARA REALTY HOLDING CORP. and
HILLSIDE PARK 168, LLC
18th
685 Third Avenue, Floor
New York, NY 10017
(212) 999-7100
MArbitrio@wshblaw.com
CSeusing@wshblaw.com
LHenry@wshblaw.com
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Preview
FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X ~ SHIKHA AKTER, RAFIQUL BHUIYON, ROCKSHANA BEGUM, FRANCES HOLLAND, MD. ATAUL HOQUE, Index No.: 704563/2018 ANWAR HOSSAIN, MIRBAHAR JAHANGIR MD. ASSADUZZAMAN ALI- HOSSAIN, KHAN, ~ ~ ASHRAF LODI, NURUN NAHAR, MOSAMMAT MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN, Plaintiffs, -against- ZARA REALTY HOLDING CORP., HILLSIDE PARK 168, LLC, AND ANTHONY SUBRAJ, Defendants. ~~~~~~~ ~ ------------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF ZARA REALTY HOLDING CORP. AND HILLSIDE PARK 168, LLC'S CROSS-MOTION FOR LEAVE TO REARGUE THE arnvvnar vn avoarroo ar, n a ++ram PLAINTIFFS' nor vrarr, avonnvrarv r r, ior. MOTION TO DISMISS REGARDING ON-TIME DISCOUNT LEASE PROVISION CLAIMS AND THE CLAIMS OF PLAINTIFFS ASSADUZZAMAN KHAN, NURUN NAHAR AND MD SYFUR RAHMAN WOOD SMITH HENNING & BERMAN LLP Michelle Arbitrio, Esq. Christopher J. Seusing, Esq. Leah A. Henry, Esq. Attorneys for Defendants ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC 18th 685 Third Avenue, 18 Floor New York, NY 10017 (212) 999-7100 MArbitrio@wshblaw.com CSeusing@wshblaw.com LHenry@wshblaw.com LEGAL:10916-0009/9269946.1 LEGAL:109164009/9269946.1 1 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 PRELIMINARY STATEMENT Defendants respectfully seek leave to reargue 1) the Court's denial of their Motion to Dismiss the claims of Plaintiffs Assaduzzaman Khan, Nurun Nahar and Md. Syfur Rahman pursuant Plaintiffs' to C.P.L.R. § 3211(a)(4) and 2) the denial of the Motion to Dismiss Plaintiffs claims related to the on-time discount lease provisions pursuant to C.P.L.R. § 3211(a)(7). Specifically, this Court relied Plaintiffs' upon Plaintiffs misstatement of the standard of dismissal under C.P.L.R. § 3211(a)(4) when itfound that the dismissal of three plaintiffs from this matter would somehow prejudice the claims of the remaining twelve plaintiffs. Neither the record nor controlling case law support such a proposition, and the claims of these three Plaintiffs should be dismissed on grounds that they have identical claims pending before the DHCR and the Civil Court. Additionally, the Court incorrectly held that Defendants' the Plaintiffs disputed one of arguments in the Motion to Dismiss when in fact there Plaintiffs' was no such dispute. Specifically, Defendants argued that claims related to the "on-time discount" Plaintiffs' Plaintiffs' provisions in leases should be dismised as moot since current leases, appended to the motion to dismiss, no longer contained those provisions. The Court did not consider the mootness argument claiming that Plaintiffs disputed this argument, however, Plaintiffs did not argue in their Opposition that their current leases contained on-time discounts. Accordingly, Defendants respectfully request leave to reargue the branches of the Motion to Dismiss discussed above which were previously denied. ARGUMENT L Legal Standard for Motion for Leave to Reargue A motion for leave to reargue shall be based upon "matters of fact or law allegedly motion." overlooked or misapprehended by the court in determining the prior See CPLR § 2221(d). The misapplication of controlling law and a mistaken analysis and conclusion are grounds for leave 2 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 to reargue a motion.SeeGrimmv.Bailey, 105 A.D. 3d 703 (2d Dep't, 2013);CaringProfessionals, Inc.v.Landa, 152 A.D. 3d 738 (2d Dep't, 2017). Defendants' H. The Court Mistakenly Held that Plaintiffs Disputed Argument that the On-Time Discount Provisions are No Longer Contained in Plaintiffs Leases, thus Those Claims are Moot and Should be Dismissed. Plaintiffs' discount" current leases do not contain the "on-time provisions at issue in the Amended Complaint, accordingly those claims should be dismissed as moot. Plaintiffs do not dispute this in their Opposition to the Motion to Dismiss, and the Court's finding that the Plaintiffs did so dispute was incorrect. Specifically, in the Order on the Motion to Dismiss, this Court stated "whether the [on-time discount rent provision] issue is moot because, as the defendants contend, the plaintiffs' plaintiffs." current leases do not contain such provisions isdisputedbyplaintiffs."See Order attached Defendants' hereto as Exhibit A at pg. 7. The Court did not reach mootness argument because of this incorrect finding. However, Plaintiffs did not claim in their Opposition to the Motion to Dismiss Plaintiffs' that their current leases contain on-time discount provisions.See Plaintiffs Memorandum of Law in Defendants' Opposition to Motion to Dismiss attached to the Seusing Affirmation as Exhibit B. Defendants' discount' Rather, Plaintiffs argued that "inserted 'on-time clauses in leases with Akter," Plaintiffs Maria Velasquez, S.M. Zaman, Md. Syfur Rahman, Nurun Nahar, and Shikah referring to past conduct, but Plaintiffs do not argue that their current leases contain those provisions.See Exhibit 8 at pgs. 17-18. This is an important distinction because Plaintiffs seek in their Amended Complaint monetary damages and a "permanent injunction requiring Defendants to cease collecting or tenants' rent." attempting to collect amounts in excess of legally collectible rent."See Verified Amended Complaint attached to Seusing Affirmation as Exhibit C. Since the Plaintiffs current leases do not contain on-time discount provisions, there are no grounds for monetary damages or a permanent 3 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 Plaintiffs' injunction. claims related to these lease provisions are moot because itis undisputed by Plaintiffs that these provisions are no longer in effect. Accordingly, these claims should be dismissed. III.The Court Misapplied Case Law Incorrectly Cited by Plaintiffs in their Opposition to the Motion to Dismiss Regarding the Standard for Dismissal of Duplicate Pending Claims Pursuant to CPLR § 3211(a)(4). Defendants' branch of the motion seeking dismissal of the claims of Plaintiffs Azzaduzzaman Khan, Nurun Nahar and Md. Syfur Rahman should have been granted because the substantial identity element is satisfied and the additional plaintiffs would not be precluded from redress for their claims in the instant matter. Pursuant to CPLR 3211(a)(4), a party may move for judgment dismissing one or more causes of action asserted against him on the grounds that there is another action pending between the same parties for the same cause of action in another judicial proceeding. See CPLR 3211(a)(4). A court may dismiss such an action when there is (1) a substantial identity of the parties for the same cause of action and (2) the two actions are sufficiently similar and the relief sought is the same or substantially the same. Montalvo v.Air Dock Systems, 37 A.D.3d 567, 567 (2d Dep't 2007). Defendants' Plaintiffs' Here, the Court denied Motion to Dismiss the above claims finding that because "the instant action is brought by numerous other tenants...there is not a substantial matters." identity of parties here with those of the earlier See Exhibit A. The Court further held that dismissal on CPLR § 3211(a)(4) grounds "would also be inappropriate because these additional tenants would be without redress once DHCR and the Civil Court decided the claims of Rahman, actions." Nahar and Assaduzzaman [Khan] unless the additional tenants began their own Id. However, the Court's analysis misapprehends the applicable law on two grounds. First, a motion under CPLR 3211(a)(4) may prevail despite the presence of additional parties to the instant action 4 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 even if those additional parties were not involved in the prior pending action. See White Light (1" (" Productions, Inc. v. On the Scene Productions, Inc., 231 A.D.2d 90, 94 Dep't 1997) ("The presence of additional parties, however, will not necessarily defeat a motion pursuant to CPLR 3211(a)(4) where, as here, both suits arise out of the same subject matter or series of alleged wrongs.") [internal citations omitted] ; see also Case Capital Corp. v.Morgan Investments, Inc., 154 AD.2d 501 (2d Dep't 1989). As long as both suits arise out of the same subject matter or series of alleged wrongs, a court may grant a CPLR 3211(a)(4) claim because the substantial identity and sufficiently similar actions elements are both satisfied. White Light Productions, Inc., 231 A.D.2d at 94. Additionally, the dismissal of three of the plaintiffs in the current matter on CPLR 3211(a)(4) grounds does not preclude the remaining thirteen plaintiffs from continuing with their claims here. Assaduzzaman" The presence of "numerous other tenants besides Rahman, Nahar and in this matter, does not destroy the substantial identity of the parties prong for dismissal under CPLR 3211(a)(4). See Exhibit A at page 6. In Case Capital Corp. v.Morgan Investments, Inc., 154 AD.2d plaintiffs' 501 (2d Dep't 1989), the Second Department affirmed the lower court's stay of the action in New York based on the fact that there was another action pending in Baltimore County, Maryland in which some of the present defendants were against the same present plaintiffs. The Second Department reasoned that the substantial identity threshold in CPLR 3211(a)(4) does not require "a parties," complete identity of the but instead, a substantial identity. Id. 501 ("it is the substantial rather than complete identity of parties which is required to invoke that section."). Similarly, the Defendants' presence of twelve additional plaintiffs in this matter does not interfere with establishment of substantial identity. The Court recognized that Plaintiffs Md. Syfur Rahman and Nurun Nahar already have matters pending before DHCR consisting of claims against Defendants for rent overcharges and improper lease clauses, just as claimed in the instant matter. See Exhibit A 5 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 at page 6. Additionally, Plaintiff Md. Assaduzzaman Khan filed an answer and counterclaims in a holdover proceeding pending against him in Civil Court raising identical claims to the ones asserted in this instant action. Id. Plaintiffs failed to provide any case law which supports a finding that when the quantity of plaintiffs in the instant action exceeds the number of plaintiffs in the prior proceeding, the substantial Defendants' identity element is weakened. In their Brief in Opposition to Defendants Motion to Dismiss, Plaintiffs cite to Breiterman v. Elmar Properties, Inc., 123 A.D.2d 735, 737 (2d Dep't 1986) and Swartz v. Swartz, 142 A.D.3d 818, 821 (2d Dep't 2016) in an attempt to support a finding that the number of plaintiffs influences the substantial identity element. Interestingly, in both cases, the CPLR 3211(a)(4) arguments were rejected because the relief sought by plaintiffs were not substantially the same relating to the second element of CPLR 3211(a)(4). See Breiterman, 123 A.D.2d 735 at 737 (finding that the CPLR 3211(a)(4) argument should be disregarded because the cause of action did not arise out of the same actionable wrong); Swartz, 142 A.D.3d 818 at 822 (reasoning that there was no substantial identity and the relief sought was not the same because the initial action against plaintiff s stepchildren in the pending divorce proceeding forplaintiff s right to her equitable distribution differed from the instant action involving 36 additional parties who allegedly engaged in tortious conduct). Additionally, the dismissal of the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman has no bearing on the claims of the remaining twelve defendants. Thus, the remaining defendants would not be prejudiced in any manner. The Court relied on Dugan v. London Terrace Gardens, L.P., 34 Misc. 3d 1240(A) (N.Y. Sup. Ct. 2011) to support a finding that the remaining plaintiffs would be without redress once the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman were decided. However, in that case the lower court stated that the remaining Dugan plaintiffs would be without 6 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 (" redress ifthe court decided to certify the class. Id. at *9. ("Even ifDHCR were to address the named plaintiffs' plaintiffs claims, there co-tenants would be without redress unless they commenced their own actions. Although defendant may claim a class action is unnecessary, the need for a class action is the court's and not DHCR's determination."). Further, that Court recognized that the specific issues in that case, namely, retroactivity, statute of limitations and, legality of unilateral waiver, were not within the expertise of DHCR, thus itwas inappropriate for the claims to be heard by DHCR which has expertise in rent regulations and overcharge claims. Id. at *7. Plaintiffs' Even if Azzaduzzaman, Nahar and Rahman's claims continue to be heard by DHCR and the Civil Court, the remaining plaintiffs in this suit can continue to seek redress in this Court and are not otherwise prejudiced by the dismissal. Only the specific claims made by the identified three plaintiffs would be deemed resolved and precluded from consideration in thisinstant matter since they are currently being addressed by the DHCR and the Civil Court. Id. at *9. Accordingly, the claims of Plaintiffs Azzaduzzaman, Nahar and Rahman should be dismissed pursuant to CPLR § 3211(a)(4) because there is a substantial identity of the parties between their pending matters in the DHCR and Civil Court and the instant matter, and all of the actions are sufficiently similar and the relief sought is the same or substantially the same. Montalvo v.Air Dock Systems, 37 A.D.3d 567, 567 (2d Dep't 2007). Moreover, the claims made by the remaining Plaintiffs would not be interfered with because they are not subject to dismissal under CPLR 3211(a)(4). CONCLUSION Defendants' WHEREFORE, Defendants respectfully request thatthis Court Grant Motion for Plaintiffs' Leave to Reargue the Motion to Dismiss regarding Rent Overcharge claims pertaining to the on-time discount lease provisions and the claims of Plaintiffs . 7 of 8 FILED: QUEENS COUNTY CLERK 05/30/2018 04:36 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/30/2018 Dated: New York, NY May 30, 2018 Respectfully submitted, WOOD SMITH HENNING & BERMAN LLP By: Michelle Arbitrio, Esq. Christopher J. Seusing, Esq. Leah A. Henry, Esq. Attorneys for Defendants ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC 18th 685 Third Avenue, Floor New York, NY 10017 (212) 999-7100 MArbitrio@wshblaw.com CSeusing@wshblaw.com LHenry@wshblaw.com 8 of 8