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FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018
NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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SHIKHA AKTER, RAFIQUL BHUIYON, ROCKSHANA
BEGUM, FRANCES HOLLAND, MD. ATAUL HOQUE, Index No.: 704563/2018
ANWAR HOSSAIN, MIRBAHAR JAHANGIR
HOSSAIN, MD. ASSADUZZAMAN KHAN, ALI-
ASHRAF LODI, NURUN NAHAR, MOSAMMAT AFFIRMATION IN SUPPORT
MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR OF MOTION FOR STAY
RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN,
Plaintiffs,
-against-
ZARA REALTY HOLDING CORP., HILLSIDE PARK
168, LLC, AND ANTHONY SUBRAJ,
Defendants.
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CHRISTOPHER SEUSING, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the truth of the following statements under penalty of perjury:
1. I am a Partner with the law firm of Wood Smith Henning & Berman, LLP, attorneys
for the defendants, ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC, and, as
such, I am fully familiar with the facts and proceedings heretofore had herein by virtue of a review
of the file maintained by my firm.
2. This affirmation is submitted in support of Defendants’ Motion for Stay.
LEGAL STANDARD FOR A MOTION TO STAY
3. Pursuant to CPLR § 2201 the stay of one action pending the resolution of another
action is appropriate when the determination of one action will result in the resolution of both
actions. Green Tree Fin. Servicing Corp. v. Lewis, 280 A.D.2d 642, 643 (2d Dept. 2001); Pierre
Associates, Inc. v. Citizens Cas. Co.of New York, 32 A.D.2d 495, 496 (1st Dep't 1969); Safier v.
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Cohl, 463 N.Y.S.2d 937, 940 (3rd Dep't 1983). Greenpoint Mort. Funding Inc. v. Commonwealth
Land Title Isn. Co, 836 N.Y.S.2d 493 (Nassau Cty. 2007).
ARGUMENT
I. The Parties to the Instant Proceeding and the New York Attorney General Lawsuit
Are the Same and Require the Stay of the Instant Proceeding.
4. The parties in the instant proceeding and the New York Attorney General Lawsuit
overlap and thus meet the first requirement for a stay of a proceeding pursuant to CPLR § 2201. The
Defendants1 in the present matter are identified as Zara Realty Holding Corp. and Hillside Park 168,
LLC, both entities are defendants in the New York Attorney General Lawsuit. See Akter vs. Zara
Complaint (“Akter Complaint”) attached hereto as Exhibit A; see also New York Attorney General
Lawsuit attached hereto as Exhibit B.
5. Additionally, the Plaintiffs in the instant lawsuit are tenants of the apartment building
owned by Defendant Hillside Park 168, LLC, and are being represented by the New York Attorney
General in the New York Attorney General Lawsuit for the same claims, and thus sufficiently meet
the requirement of an identity of parties between the two matters. See Exhibit A at ¶¶23, 24; see also
Exhibit B at ¶¶17, 38.
6. The New York Attorney General has asserted claims in the New York Attorney
General Lawsuit pursuant to Rent Stabilization Law § 26-516(e), Rent Stabilization Code § 2626.3,
and New York Executive Law § 63(12) and is seeking injunctive relief, restitution, damages,
disgorgement, and costs on behalf of the People of the State of New York.
1
While Anthony Subraj is identified as a Defendant in the instant proceeding, he has been dismissed by Order of this
Court in response to the CPLR § 3211 motion to dismiss. In any event, Mr. Subraj is identified as a defendant in both the
instant proceeding and the New York Attorney General Lawsuit.
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7. That Complaint states that it is seeking to enjoin the Defendants’ violations of Rent
Stabilization Laws and Codes across all 2,500 apartment units in 38 of their properties, which
include the property identified in the instant Complaint. See Exhibit B.
8. Case law holds that a lawsuit brought by the New York Attorney General against a
landlord regarding violations of the Rent Stabilization Law and Rent Stabilization Code is brought
on behalf of all of the affected tenants. See State by Abrams v. Solil Mgmt. Corp., 128 Misc. 2d 767,
770 (1985) (“The Attorney General entered into the stipulation on behalf of all the tenants of Solil
Management buildings equally.”). See Port Authority of New York and New Jersey vs. American
Warehousing of New York, Inc., 7 Misc. 3d 515 (2005) citing El Greco Inc. v. Cohn, 139 A.D.2d
615, 617, 527 N.Y.S.2d 256 (2d Dept. 1988).
II. The Plaintiffs in the Instant Proceeding and the New York Attorney General Have
Asserted the Same Causes of Action and Seek the Same Relief.
9. The following violations are being asserted on behalf of the Plaintiffs in the instant
lawsuit and on their behalf in the New York Attorney General Lawsuit:
Claims Akter Lawsuit (Exhibit A)2 New York Attorney General
Lawsuit (Exhibit B)
9 N.Y.C.R.R. § 2525.1 ¶¶52-80; 223 ¶¶4; 97-114; 171-176
(Illegal Key Replacement
Policies and Fees)
9 N.Y.C.R.R. § 2525.1 ¶¶81-96; 224, 225 ¶¶4; 89-96; 158-164
(Illegal Broker & Application
Fees)
9 N.Y.C.R.R. § 2525.1 ¶¶97-128; 200-203 ¶¶4; 137-140; 191-195
(Illegal On-Time Discount
Lease Clauses)
9 N.Y.C.R.R. § 2525.1 ¶¶129-149; ¶¶4; 207-211
(Deceptive Interim Leases)
9 N.Y.C.R.R. § 2525.5(g) ¶¶150-197; 226-228 ¶¶4; 115-123; 177-183
(Unlawful/Improper Vacancy
Increases)
2
Pursuant to this Court’s prior Order, the causes of action for violation of General Business Laws Chapter 349 and for
tenant harassment were dismissed. See Order of Dismissal attached to Seusing Affirmation as Exhibit C.
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9 N.Y.C.R.R. § 2525.5(g) ¶¶198-199; ¶4; 141-146; 203-206
(Failure to Provide Lease
Riders)
Tenant Harassment in ¶¶242-252; ¶¶5; 212-218
violation of Rent
Stabilization Code
10. While Plaintiff Mirbahar Jahangir Hossain in the instant matter has also asserted a
claim for interference with tenants’ rights in violation of Real Property Law § 230 as well as
retaliation for purported illegal rent increases, these claims necessarily follow from and are entirely
dependent on the claims asserted above by all of the Plaintiffs. In other words, if it is determined that
the claims above do not amount to illegal lease provisions or improper fees, then Mr. Hossain’s
claims related to those same provisions cannot stand.3
11. Additionally, Mr. Hossain’s rights as a tenant are being enforced by the New York
Attorney General in the New York Attorney General Lawsuit against the Defendants.
12. Additionally, the Plaintiffs in the instant proceeding seek the same relief which is
being sought in the New York Attorney General Lawsuit as follows:
Prayers for Relief Akter Lawsuit New York Attorney General
(Exhibit A) Lawsuit (Exhibit B)
Injunction barring Defendants from ¶231; Request for Relief ¶¶164, 170, 176, 183, 195,
collecting amounts in excess of legal at pgs. 38-39 202, 206, 211; Request for
regulated rent Relief pg. 46
Injunction enjoining Defendants from ¶¶251; Request for ¶218
engaging in harassment Relief at pg. 39
Disgorgement, restitution and other ¶229-230; Request for Request for Relief at pg. 46
equitable relief to address Zara’s alleged Relief at pgs. 38-39
violations of Rent Stabilization laws
13. As noted above, the Plaintiffs directly in this matter and through the New York
Attorney General in the New York Attorney General Lawsuit, seek the same injunctive and equitable
3
These claims are being heard by the housing court as our appeal to the appellate term reversing the stay of Judge
Ressos was granted.
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relief, including the potential restitution or reimbursement of allegedly illegally collected fees from
Defendants.
III. Interests of Judicial Economy Require the Stay of The Instant Proceeding Until the
New York Attorney General Proceeding Is Resolved.
14. Courts in New York recognize that CPLR § 2011 is intended to prevent inconsistent
adjudications such as those at risk here, and have granted stays in such circumstances. See El Greco
Inc. v. Cohn, 139 A.D.2d 615, 616, (1988) (“The parties in the two actions are virtually identical, the
issues to be resolved overlap… considering the similarity of the issues involved, the imposition of a
stay further avoids the risk of inconsistent adjudications, duplication of proof, and the potential
waste of judicial resources.”); In re Tenenbaum, 81 A.D.3d 738, 739–40 (2011) (“Allowing the
turnover proceeding to go forward … poses a risk of inconsistent determinations regarding the
siblings' competing claims to various assets.”); SSA Holdings, LLC v. Kaplan, 120 A.D.3d 1111 (1st
Dep't 2014) (“Where determination of a related, pending proceeding “may dispose of or limit issues
involved in [a pending] action”, a stay is proper.”); Uptown Healthcare Mgt., Inc. v. Rivkin Radler
LLP, 116 A.D.3d 631 (1st Dep't 2014) (citation omitted) (“Complete identity of the parties and
claims” is not required for a stay if the failure to grant a stay may cause “duplication of effort, waste
of judicial resources, and possibility of inconsistent rulings.”).
15. In fact, it would be in the Plaintiffs’ interests to agree to a stay of the instant matter,
so that their rights and those of all of their fellow tenants can be enforced by the New York Attorney
General in the New York Attorney General Lawsuit.
ATTACHED EXHIBITS AND SUPPORTING DOCUMENTATION
16. Including those items listed above, the following materials are attached to this
Attorney Affirmation:
Exhibit A: Akter v. Zara Realty Holding Corp. Amended Complaint
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Exhibit B: New York Attorney General vs. Zara Realty Holding Corp. Complaint
Exhibit C: Order of Partial Dismissal
CONCLUSION
WHEREFORE, the Defendants respectfully request that the Court grant the Defendants’
motion in its entirety, along with such other and further relief as the Court may deem just and
proper.
Dated: New York, NY
March 13, 2019
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
685 Third Avenue, 18th Floor
New York, NY 10017
(212) 999-7100
MArbitrio@wshblaw.com
CSeusing@wshblaw.com
LHenry@wshblaw.com
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FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 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 HOSSAIN, MD. ASSADUZZAMAN KHAN, ALI- ASHRAF LODI, NURUN NAHAR, MOSAMMAT AFFIRMATION IN SUPPORT MAZADA, MD SHAMIMUR RAHMAN, MD SYFUR OF MOTION FOR STAY RAHMAN, MARIA VELASQUEZ, AND S.M. ZAMAN, Plaintiffs, -against- ZARA REALTY HOLDING CORP., HILLSIDE PARK 168, LLC, AND ANTHONY SUBRAJ, Defendants. ------------------------------------------------------------------------X CHRISTOPHER SEUSING, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following statements under penalty of perjury: 1. I am a Partner with the law firm of Wood Smith Henning & Berman, LLP, attorneys for the defendants, ZARA REALTY HOLDING CORP. and HILLSIDE PARK 168, LLC, and, as such, I am fully familiar with the facts and proceedings heretofore had herein by virtue of a review of the file maintained by my firm. 2. This affirmation is submitted in support of Defendants’ Motion for Stay. LEGAL STANDARD FOR A MOTION TO STAY 3. Pursuant to CPLR § 2201 the stay of one action pending the resolution of another action is appropriate when the determination of one action will result in the resolution of both actions. Green Tree Fin. Servicing Corp. v. Lewis, 280 A.D.2d 642, 643 (2d Dept. 2001); Pierre Associates, Inc. v. Citizens Cas. Co.of New York, 32 A.D.2d 495, 496 (1st Dep't 1969); Safier v. LEGAL:10916-0009/11062175.1 1 1 of 6 FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 Cohl, 463 N.Y.S.2d 937, 940 (3rd Dep't 1983). Greenpoint Mort. Funding Inc. v. Commonwealth Land Title Isn. Co, 836 N.Y.S.2d 493 (Nassau Cty. 2007). ARGUMENT I. The Parties to the Instant Proceeding and the New York Attorney General Lawsuit Are the Same and Require the Stay of the Instant Proceeding. 4. The parties in the instant proceeding and the New York Attorney General Lawsuit overlap and thus meet the first requirement for a stay of a proceeding pursuant to CPLR § 2201. The Defendants1 in the present matter are identified as Zara Realty Holding Corp. and Hillside Park 168, LLC, both entities are defendants in the New York Attorney General Lawsuit. See Akter vs. Zara Complaint (“Akter Complaint”) attached hereto as Exhibit A; see also New York Attorney General Lawsuit attached hereto as Exhibit B. 5. Additionally, the Plaintiffs in the instant lawsuit are tenants of the apartment building owned by Defendant Hillside Park 168, LLC, and are being represented by the New York Attorney General in the New York Attorney General Lawsuit for the same claims, and thus sufficiently meet the requirement of an identity of parties between the two matters. See Exhibit A at ¶¶23, 24; see also Exhibit B at ¶¶17, 38. 6. The New York Attorney General has asserted claims in the New York Attorney General Lawsuit pursuant to Rent Stabilization Law § 26-516(e), Rent Stabilization Code § 2626.3, and New York Executive Law § 63(12) and is seeking injunctive relief, restitution, damages, disgorgement, and costs on behalf of the People of the State of New York. 1 While Anthony Subraj is identified as a Defendant in the instant proceeding, he has been dismissed by Order of this Court in response to the CPLR § 3211 motion to dismiss. In any event, Mr. Subraj is identified as a defendant in both the instant proceeding and the New York Attorney General Lawsuit. LEGAL:10916-0009/11062175.1 2 2 of 6 FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 7. That Complaint states that it is seeking to enjoin the Defendants’ violations of Rent Stabilization Laws and Codes across all 2,500 apartment units in 38 of their properties, which include the property identified in the instant Complaint. See Exhibit B. 8. Case law holds that a lawsuit brought by the New York Attorney General against a landlord regarding violations of the Rent Stabilization Law and Rent Stabilization Code is brought on behalf of all of the affected tenants. See State by Abrams v. Solil Mgmt. Corp., 128 Misc. 2d 767, 770 (1985) (“The Attorney General entered into the stipulation on behalf of all the tenants of Solil Management buildings equally.”). See Port Authority of New York and New Jersey vs. American Warehousing of New York, Inc., 7 Misc. 3d 515 (2005) citing El Greco Inc. v. Cohn, 139 A.D.2d 615, 617, 527 N.Y.S.2d 256 (2d Dept. 1988). II. The Plaintiffs in the Instant Proceeding and the New York Attorney General Have Asserted the Same Causes of Action and Seek the Same Relief. 9. The following violations are being asserted on behalf of the Plaintiffs in the instant lawsuit and on their behalf in the New York Attorney General Lawsuit: Claims Akter Lawsuit (Exhibit A)2 New York Attorney General Lawsuit (Exhibit B) 9 N.Y.C.R.R. § 2525.1 ¶¶52-80; 223 ¶¶4; 97-114; 171-176 (Illegal Key Replacement Policies and Fees) 9 N.Y.C.R.R. § 2525.1 ¶¶81-96; 224, 225 ¶¶4; 89-96; 158-164 (Illegal Broker & Application Fees) 9 N.Y.C.R.R. § 2525.1 ¶¶97-128; 200-203 ¶¶4; 137-140; 191-195 (Illegal On-Time Discount Lease Clauses) 9 N.Y.C.R.R. § 2525.1 ¶¶129-149; ¶¶4; 207-211 (Deceptive Interim Leases) 9 N.Y.C.R.R. § 2525.5(g) ¶¶150-197; 226-228 ¶¶4; 115-123; 177-183 (Unlawful/Improper Vacancy Increases) 2 Pursuant to this Court’s prior Order, the causes of action for violation of General Business Laws Chapter 349 and for tenant harassment were dismissed. See Order of Dismissal attached to Seusing Affirmation as Exhibit C. LEGAL:10916-0009/11062175.1 3 3 of 6 FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 9 N.Y.C.R.R. § 2525.5(g) ¶¶198-199; ¶4; 141-146; 203-206 (Failure to Provide Lease Riders) Tenant Harassment in ¶¶242-252; ¶¶5; 212-218 violation of Rent Stabilization Code 10. While Plaintiff Mirbahar Jahangir Hossain in the instant matter has also asserted a claim for interference with tenants’ rights in violation of Real Property Law § 230 as well as retaliation for purported illegal rent increases, these claims necessarily follow from and are entirely dependent on the claims asserted above by all of the Plaintiffs. In other words, if it is determined that the claims above do not amount to illegal lease provisions or improper fees, then Mr. Hossain’s claims related to those same provisions cannot stand.3 11. Additionally, Mr. Hossain’s rights as a tenant are being enforced by the New York Attorney General in the New York Attorney General Lawsuit against the Defendants. 12. Additionally, the Plaintiffs in the instant proceeding seek the same relief which is being sought in the New York Attorney General Lawsuit as follows: Prayers for Relief Akter Lawsuit New York Attorney General (Exhibit A) Lawsuit (Exhibit B) Injunction barring Defendants from ¶231; Request for Relief ¶¶164, 170, 176, 183, 195, collecting amounts in excess of legal at pgs. 38-39 202, 206, 211; Request for regulated rent Relief pg. 46 Injunction enjoining Defendants from ¶¶251; Request for ¶218 engaging in harassment Relief at pg. 39 Disgorgement, restitution and other ¶229-230; Request for Request for Relief at pg. 46 equitable relief to address Zara’s alleged Relief at pgs. 38-39 violations of Rent Stabilization laws 13. As noted above, the Plaintiffs directly in this matter and through the New York Attorney General in the New York Attorney General Lawsuit, seek the same injunctive and equitable 3 These claims are being heard by the housing court as our appeal to the appellate term reversing the stay of Judge Ressos was granted. LEGAL:10916-0009/11062175.1 4 4 of 6 FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 relief, including the potential restitution or reimbursement of allegedly illegally collected fees from Defendants. III. Interests of Judicial Economy Require the Stay of The Instant Proceeding Until the New York Attorney General Proceeding Is Resolved. 14. Courts in New York recognize that CPLR § 2011 is intended to prevent inconsistent adjudications such as those at risk here, and have granted stays in such circumstances. See El Greco Inc. v. Cohn, 139 A.D.2d 615, 616, (1988) (“The parties in the two actions are virtually identical, the issues to be resolved overlap… considering the similarity of the issues involved, the imposition of a stay further avoids the risk of inconsistent adjudications, duplication of proof, and the potential waste of judicial resources.”); In re Tenenbaum, 81 A.D.3d 738, 739–40 (2011) (“Allowing the turnover proceeding to go forward … poses a risk of inconsistent determinations regarding the siblings' competing claims to various assets.”); SSA Holdings, LLC v. Kaplan, 120 A.D.3d 1111 (1st Dep't 2014) (“Where determination of a related, pending proceeding “may dispose of or limit issues involved in [a pending] action”, a stay is proper.”); Uptown Healthcare Mgt., Inc. v. Rivkin Radler LLP, 116 A.D.3d 631 (1st Dep't 2014) (citation omitted) (“Complete identity of the parties and claims” is not required for a stay if the failure to grant a stay may cause “duplication of effort, waste of judicial resources, and possibility of inconsistent rulings.”). 15. In fact, it would be in the Plaintiffs’ interests to agree to a stay of the instant matter, so that their rights and those of all of their fellow tenants can be enforced by the New York Attorney General in the New York Attorney General Lawsuit. ATTACHED EXHIBITS AND SUPPORTING DOCUMENTATION 16. Including those items listed above, the following materials are attached to this Attorney Affirmation: Exhibit A: Akter v. Zara Realty Holding Corp. Amended Complaint LEGAL:10916-0009/11062175.1 5 5 of 6 FILED: QUEENS COUNTY CLERK 03/13/2019 11:28 PM INDEX NO. 704563/2018 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 03/13/2019 Exhibit B: New York Attorney General vs. Zara Realty Holding Corp. Complaint Exhibit C: Order of Partial Dismissal CONCLUSION WHEREFORE, the Defendants respectfully request that the Court grant the Defendants’ motion in its entirety, along with such other and further relief as the Court may deem just and proper. Dated: New York, NY March 13, 2019 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 685 Third Avenue, 18th Floor New York, NY 10017 (212) 999-7100 MArbitrio@wshblaw.com CSeusing@wshblaw.com LHenry@wshblaw.com LEGAL:10916-0009/11062175.1 6 6 of 6