Preview
FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013
NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
X
GLENDA GUTIERREZ,
Index No. 60670/2013
Plaintiff,
- against -
Notice of Entry
McGRATH MANAGEMENT SERVICES, INC.,
VISTA ON THE LAKE, INC., BOARD OF MANAGERS
OF VISTA ON THE LAKE CONDOMINIUM, and
THE ESTATE OF FRANCINE BELLONI
Defendants.
PLEASE TAKE NOTICE that enclosed is a true copy of the Decision and Order
entered in the office of the Clerk of the within this Court on August 28, 2018
Dated: White Plains
September 7, 2018
Adam M. Peska, Esq.
PESKA & ASSOCIATES, P.C.
Attorneys for Plaintiff
Glenda Gutierrez
235 Main Street, Ste 450
White Plains, NY 10601
(914) 686-5042
TO:
Victoria Weiner, Esq.
Milber Makris Plousadis & Seiden LLP
Attorneys for Defendants
Vista on the Lake, Inc.,
Board of Managers of Vista On the Lake Condominium,
and Estate of Francine Belloni
709 Westchester Ave, 3rd Floor
White Plains, NY 10601
(914) 681-8700
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To commence the statutory
time forappeals as ofright
(CPLR 5513[a]),you are
advised to serve a copy
of thisorder, withnotice
of entry,upon all
parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. SAM D. WALKER, J.S.C.
_.___ __.------------X
GLENDA GUTIERREZ, DECISION AND ORDER
Plaintiff, Index No.:60670/2013
Seq#6
-against-
McGRATH MANAGEMENT SERVICES INC.,
VISTA ON THE LAKE, INC., BOARD OF MANAGERS
OF VISTA ON THE LAKE CONDOMINIUM, and
FRANCIS A. BELLONI, as administrator of the estate
of FRANCINE A. BELLONI,
Defendants.
________--... --- ______________------------------- X
The papers were received and considered in connection with the
feliewing
motion for summary judgment:
Notice of Motion/Affirmation/Affidavits(3)/Exhibits A-I, A, A-H 1-23
Affirmation in Opposition/Affidavits (2)/Exhibits A-I . 24-35
Affirmation/Affidavit/Exhibits A-B 36-39
Reply
Upon the papers itis ordered that this motion is granted .
foregoing
Procedural and Factual Background
Gutierrez the owner of a condominium unit at
The plaintiff, Glenda ("Gutierrez"),
commeñced -this action to recover damages for
Vista on the Lake Condominium,
interference with contractual relations against Vista on the Lake, Inc. ("Vista")
tortious
and Board of Managers Vista on the Lake Condominium (the "Board"); battery
of.
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against Francine Belloni ("Belloni")'.; housing discriminatioñ in violation of the Federal
Fair Housing Act [42 USC § 3601st seq.] against all defendants; and. defamation
against all defendants.
McGrath Management Services, Inc. ("McGrath") moved to dismiss the action as
against it.Vista, the Board and B.elloni (the 'Vista defendants"), also jointly moved to
dismiss the action as against them. The Court (DiBe!!a, J.) issued an Order dated
January 5, 2015, granting the motions and dismissing the action. Gutierrez appealed
the Order and the Appellate Division issued a Decisioñ and Order dated July 5, 2017,
defendants'
modifying the order on the law by denying the Vista motion to dismiss the
second and third causes of action for housing discrimiñaticñ and battery. The Appellate
Division sustained the court's Order with regard to dismissal of all allegations agaiñst
McGrath and the firstand fourth causes of action for tortious interference with contract
and defamation against the Vista defendants.
defendants'
Now before this Court is the Vista motion for summary judgment
seeking dismissal of the second and third causes of action for housing discrimination in
violatioñ of 42 USC § 3604 and battery. The Vista defendants argue that Gutierrez was
not discriñ1|ñated against. They assert that Gutierrez was notified that she was not
allcwed to use the common area pool facilities under the rules of the condominium
because her account was delinquent. The Vista defendants also argue that, after
conducting a hearing on August 30, 2013, Justice DiBella enjoined Gutierrez from using
the pool facilities until she tendered full paymênt of all outstanding arrearage.
¹Frañciñê Belloni passed away during the pêñdeñcy of this matter and, Francis A.
Belloni, as administrator of the estate of Francine A. Belloni was substituted.
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Therefore, the Board had the right to exclude her from using the pool until she paid all
amounts due and did not discriminate against her. The defendants also argue that with
regard to the claim of battery, Belloni did not intentionally touch or grab Gutierrez, but
simply fell.
In opposition, Gutierrez argues that the Vista defendants brazenly discriminated
against her by placing trespassing notices throughout the Vista condominium complex,
to prohibit Gutierrez and/or her family from using the pool. Gutierrez alleges that the
only other Vista unit owner who was subjeded to these extreme circumstances, was
Efrain Rodriguez, another Hispanic unit owner. Gutierrez asserts that although Vista
claims that the trespass notices were posted due to Gutierrez's delinquency on her
maintenance, Vista repeatedly refused to accept her maintenañce checks simply
"maintenance"
because the word appeared on the memo line of the check. Gutierrez
also claims that her Charles W. McGuire ("McGuire"), who is white, was
boyfriend,
given a pool pass for her unit in the same season in which she was unable to obtain
one. Gutierrez further claims that she had conversations with two white Vista owners,
who indicated that were given pool passes despite maintenance arrears.
they
In support of their motion, the Vista defendants rely upon, among other things,
affidavits in support from Margaret the Board's president, Belloni, and Diane
Ross,
general counsel to the Vista defendants; a trañscript of Justice DiBe!!a's
Selker,
copies of the deposition transcripts of Gutierrez and McGuire; a copy of
proceedings,
the By-Laws and rules of the Vista Condominium; a copy of Vista's ledger showing
charges and payments for Gutierrez; and a copy of the pleadings.
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Discussion
A party seeking surnmary judgment bears the initial burden of affirmatively
demonstrating its antitlement to summary judgment as a matter of law. (Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hospital, 68
NY2d 320 [1986]). Failure of a moving party to tender sufficient evidence to
demonstrate as a matter of law the absêñce of a material issue of fact results in a
failure to tender a prima facie entitlement to summary judgment and requires denial of
the motion, regardless of the sufficiency of the opposing papers. {McDonald v Mauss,
38 AD3d 727 [2d Dept 2007]).
. .
Ifa sufficient prima facie showing is made, however, the burden then shifts to the
non-moving party to come forward with evidence to demonstrate the existence of a
material issue of fact requiring a trial.(CPLR 3212[b]); see also, Vennette v Kenworth
parties'
Truck Company, 68 NY2d 714, 717 [1986]). The competing contentions are
vievied in the light most favorable to the party opposing the motion. (Marine Midiâñd
Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept
1990]).
Here, the Court finds that the Vista defendants have not made out a prima facie
case as a matter of law with regard to battery. "To recover damages for battery, a
plaintiff must prove that there was bodily coñtãct, that the contact was offensive, i.e.,
wrongful under all of the circumstances, and intent to make the contact without the
consent"
plaintiffs (see Higgins v Hamilton, 18 AD3d 436 [2d Dept 2005]). While Belloni
averred that she stumbled while talking to Gutierrez because of the shoes she was
wearing and instiñctively grabbed Gutierrez's leg to steady herself as she fell, Gutierrez
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.
disputes this account, stating that she was forcefully grabbed by her arm. The video
submitted does not show the actual bodily contact and this Court is unable to determine
as a matter of law that Belloni's contact was not intsational. This is an issue of fact for a
defendants'
jury to decide and therefore, that portion of the motion is denied.
With regard to the third cause of action to recover damages for housing
discriminaticñ in violation of the federal Fair Housing Act [42 USC §. 3601 et seq.], the
Court finds that there are issues of fact, which precludes granting summary judgment.
The housing discrimination 'statute provides, in relevant part, that "it shall be
unlawful...[t]o discriminate against any person in the terms, conditions, or privileges of
sale or rental of a dwelling, or in the provision of services or faci|ities in connection
origin'"
therewith, because of race, color, religion, sex, familial status, or national
( Gutier ez v McGrath Management Services, Inc., 152 AD3d 52; 42 USC § 3601[b]).
To establish entitlement to judgment, the Vista defendants have "to demonstrate
either plaintiffs failure to establish every element of intentional discrimination, or having .
offered legitimate nondiscriminatory reasons for their challenged actions, the absence
pretextual"
of a material issue of fact as to whether their explanations were ( Maun v
Edgemont at Tarrytown Condominium, 156 AD3d 873 [2d Dept 2017]).
In this case, the Vista defendants established, prima facie, that the alleged
failure to furnish services to Gutierrez was not related to her being Hispanic, but was
instead based on the delinquency of her account. They also submitted letters from
counsel explaining why her checks were retumed and not accepted. However,
Gutierrez in turn raised an issue of . fact by submitting the affidavit of her white
boyfriend, who averred that he was provided with a pool pass for Gutierrez's unit in
. .
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when her account was delinquent and Gutierrez herself could not obtain one.
2013,
the Board's president deny that this is true, the affidavit creates an issue
Although, may
of fact for the to decide. The Court's fuñctioñ in deciding a summary judgment
jury
moticñ is not to make determinations.(Vega v Restãñi Const. Corp., 18 NY3d
credibility
499 [2012]).
Gutierrez also claims that two other white unit owners told her that they were
given pool passes even though their accounts were dêiinquent, however, she failed to
submit affidavits from those owners to support her claim. Therefore, her hearsay
averment, with regard to those unit owners, does not create an issue of fact
defendants'
Accord|ñgly, based on the foregoing, the Vista summary judgment
motion is denied. The parties are directed to appear in the Settlernent Conference Part
in Courtroom 1600 on October 9, 2018 at 9:15 a.m.
The foregoing shall constitute the Decision and Order of the Court.
Dated: White Plains, NY
August 2.8 , 2018
HON. SAM D. WALKER, J.S.C.
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AFFIRMATION OF SERVICE
STATE OF NEW YORK: COUNTY OF WESTCHESTER
ADAM M. PESKA, Esq., an attorney admitted to practice in the Courts of the State of New
York, affirms that the following statements are true under penalties of perjury:
On September 7, 2018, the undersigned served NOTICE OF ENTRY by and through the
electronic filing system ("ECF") upon:
Victoria Weiner, Esq.
Milber Makris Plousadis & Seiden LLP
709 Westchester Ave, 3rd Floor
White Plains, NY 10601
Dated: White Plains, New York
September 7, 2018
ADAM M. PESKA
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Preview
FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X GLENDA GUTIERREZ, Index No. 60670/2013 Plaintiff, - against - Notice of Entry McGRATH MANAGEMENT SERVICES, INC., VISTA ON THE LAKE, INC., BOARD OF MANAGERS OF VISTA ON THE LAKE CONDOMINIUM, and THE ESTATE OF FRANCINE BELLONI Defendants. PLEASE TAKE NOTICE that enclosed is a true copy of the Decision and Order entered in the office of the Clerk of the within this Court on August 28, 2018 Dated: White Plains September 7, 2018 Adam M. Peska, Esq. PESKA & ASSOCIATES, P.C. Attorneys for Plaintiff Glenda Gutierrez 235 Main Street, Ste 450 White Plains, NY 10601 (914) 686-5042 TO: Victoria Weiner, Esq. Milber Makris Plousadis & Seiden LLP Attorneys for Defendants Vista on the Lake, Inc., Board of Managers of Vista On the Lake Condominium, and Estate of Francine Belloni 709 Westchester Ave, 3rd Floor White Plains, NY 10601 (914) 681-8700 1 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018 NYSCEF DOC, NO. 196 RECEIVED NYSCEF: 08/28/2018 To commence the statutory time forappeals as ofright (CPLR 5513[a]),you are advised to serve a copy of thisorder, withnotice of entry,upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. SAM D. WALKER, J.S.C. _.___ __.------------X GLENDA GUTIERREZ, DECISION AND ORDER Plaintiff, Index No.:60670/2013 Seq#6 -against- McGRATH MANAGEMENT SERVICES INC., VISTA ON THE LAKE, INC., BOARD OF MANAGERS OF VISTA ON THE LAKE CONDOMINIUM, and FRANCIS A. BELLONI, as administrator of the estate of FRANCINE A. BELLONI, Defendants. ________--... --- ______________------------------- X The papers were received and considered in connection with the feliewing motion for summary judgment: Notice of Motion/Affirmation/Affidavits(3)/Exhibits A-I, A, A-H 1-23 Affirmation in Opposition/Affidavits (2)/Exhibits A-I . 24-35 Affirmation/Affidavit/Exhibits A-B 36-39 Reply Upon the papers itis ordered that this motion is granted . foregoing Procedural and Factual Background Gutierrez the owner of a condominium unit at The plaintiff, Glenda ("Gutierrez"), commeñced -this action to recover damages for Vista on the Lake Condominium, interference with contractual relations against Vista on the Lake, Inc. ("Vista") tortious and Board of Managers Vista on the Lake Condominium (the "Board"); battery of. Page 1 of 6 1 of 6 . . 2 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 08/2 8 / 2018 against Francine Belloni ("Belloni")'.; housing discriminatioñ in violation of the Federal Fair Housing Act [42 USC § 3601st seq.] against all defendants; and. defamation against all defendants. McGrath Management Services, Inc. ("McGrath") moved to dismiss the action as against it.Vista, the Board and B.elloni (the 'Vista defendants"), also jointly moved to dismiss the action as against them. The Court (DiBe!!a, J.) issued an Order dated January 5, 2015, granting the motions and dismissing the action. Gutierrez appealed the Order and the Appellate Division issued a Decisioñ and Order dated July 5, 2017, defendants' modifying the order on the law by denying the Vista motion to dismiss the second and third causes of action for housing discrimiñaticñ and battery. The Appellate Division sustained the court's Order with regard to dismissal of all allegations agaiñst McGrath and the firstand fourth causes of action for tortious interference with contract and defamation against the Vista defendants. defendants' Now before this Court is the Vista motion for summary judgment seeking dismissal of the second and third causes of action for housing discrimination in violatioñ of 42 USC § 3604 and battery. The Vista defendants argue that Gutierrez was not discriñ1|ñated against. They assert that Gutierrez was notified that she was not allcwed to use the common area pool facilities under the rules of the condominium because her account was delinquent. The Vista defendants also argue that, after conducting a hearing on August 30, 2013, Justice DiBella enjoined Gutierrez from using the pool facilities until she tendered full paymênt of all outstanding arrearage. ¹Frañciñê Belloni passed away during the pêñdeñcy of this matter and, Francis A. Belloni, as administrator of the estate of Francine A. Belloni was substituted. Page 2 of 6 2 of 6 3 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED INDEX NYSCEF: NO. 606 / U /09/07/2018 2013 IFILED: WESTCHESTER COUNTY CLERK TPM) NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 08/28/2018 Therefore, the Board had the right to exclude her from using the pool until she paid all amounts due and did not discriminate against her. The defendants also argue that with regard to the claim of battery, Belloni did not intentionally touch or grab Gutierrez, but simply fell. In opposition, Gutierrez argues that the Vista defendants brazenly discriminated against her by placing trespassing notices throughout the Vista condominium complex, to prohibit Gutierrez and/or her family from using the pool. Gutierrez alleges that the only other Vista unit owner who was subjeded to these extreme circumstances, was Efrain Rodriguez, another Hispanic unit owner. Gutierrez asserts that although Vista claims that the trespass notices were posted due to Gutierrez's delinquency on her maintenance, Vista repeatedly refused to accept her maintenañce checks simply "maintenance" because the word appeared on the memo line of the check. Gutierrez also claims that her Charles W. McGuire ("McGuire"), who is white, was boyfriend, given a pool pass for her unit in the same season in which she was unable to obtain one. Gutierrez further claims that she had conversations with two white Vista owners, who indicated that were given pool passes despite maintenance arrears. they In support of their motion, the Vista defendants rely upon, among other things, affidavits in support from Margaret the Board's president, Belloni, and Diane Ross, general counsel to the Vista defendants; a trañscript of Justice DiBe!!a's Selker, copies of the deposition transcripts of Gutierrez and McGuire; a copy of proceedings, the By-Laws and rules of the Vista Condominium; a copy of Vista's ledger showing charges and payments for Gutierrez; and a copy of the pleadings. Page 3 of 6 3 of 6 4 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 WES' yngD NYSCEF DOC. : NO. 197 CHE ST PM1 INDEX RECEIVED NO. 60670/2013 NYSCEF: 09/07/2018 NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 08/28/2018 Discussion A party seeking surnmary judgment bears the initial burden of affirmatively demonstrating its antitlement to summary judgment as a matter of law. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Failure of a moving party to tender sufficient evidence to demonstrate as a matter of law the absêñce of a material issue of fact results in a failure to tender a prima facie entitlement to summary judgment and requires denial of the motion, regardless of the sufficiency of the opposing papers. {McDonald v Mauss, 38 AD3d 727 [2d Dept 2007]). . . Ifa sufficient prima facie showing is made, however, the burden then shifts to the non-moving party to come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial.(CPLR 3212[b]); see also, Vennette v Kenworth parties' Truck Company, 68 NY2d 714, 717 [1986]). The competing contentions are vievied in the light most favorable to the party opposing the motion. (Marine Midiâñd Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Here, the Court finds that the Vista defendants have not made out a prima facie case as a matter of law with regard to battery. "To recover damages for battery, a plaintiff must prove that there was bodily coñtãct, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the consent" plaintiffs (see Higgins v Hamilton, 18 AD3d 436 [2d Dept 2005]). While Belloni averred that she stumbled while talking to Gutierrez because of the shoes she was wearing and instiñctively grabbed Gutierrez's leg to steady herself as she fell, Gutierrez Page 4 of 6 4 of 6 5 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF FILED: DOC.WESTCHESTER NO. 197 COUNTY CLERK 08/28/2018 12:13 PM RECEIVED INDEX NYSCEF: NO. 09/07/2018 60670/2013 NYSCEF DOC. NO. 196 RECEIVED NY.SCEF: 08/28/2018 . disputes this account, stating that she was forcefully grabbed by her arm. The video submitted does not show the actual bodily contact and this Court is unable to determine as a matter of law that Belloni's contact was not intsational. This is an issue of fact for a defendants' jury to decide and therefore, that portion of the motion is denied. With regard to the third cause of action to recover damages for housing discriminaticñ in violation of the federal Fair Housing Act [42 USC §. 3601 et seq.], the Court finds that there are issues of fact, which precludes granting summary judgment. The housing discrimination 'statute provides, in relevant part, that "it shall be unlawful...[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or faci|ities in connection origin'" therewith, because of race, color, religion, sex, familial status, or national ( Gutier ez v McGrath Management Services, Inc., 152 AD3d 52; 42 USC § 3601[b]). To establish entitlement to judgment, the Vista defendants have "to demonstrate either plaintiffs failure to establish every element of intentional discrimination, or having . offered legitimate nondiscriminatory reasons for their challenged actions, the absence pretextual" of a material issue of fact as to whether their explanations were ( Maun v Edgemont at Tarrytown Condominium, 156 AD3d 873 [2d Dept 2017]). In this case, the Vista defendants established, prima facie, that the alleged failure to furnish services to Gutierrez was not related to her being Hispanic, but was instead based on the delinquency of her account. They also submitted letters from counsel explaining why her checks were retumed and not accepted. However, Gutierrez in turn raised an issue of . fact by submitting the affidavit of her white boyfriend, who averred that he was provided with a pool pass for Gutierrez's unit in . . Page 5 of 6 5 of 6 6 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018 INDEX NO. 60670/2013 FILED : WESTCHESTER COUNTY CLERK 08 /28 /2018 12 : 13 Phd NYSCEF DOC. NO. 196 RECEIVED NYSCEF: 08/28/2018 when her account was delinquent and Gutierrez herself could not obtain one. 2013, the Board's president deny that this is true, the affidavit creates an issue Although, may of fact for the to decide. The Court's fuñctioñ in deciding a summary judgment jury moticñ is not to make determinations.(Vega v Restãñi Const. Corp., 18 NY3d credibility 499 [2012]). Gutierrez also claims that two other white unit owners told her that they were given pool passes even though their accounts were dêiinquent, however, she failed to submit affidavits from those owners to support her claim. Therefore, her hearsay averment, with regard to those unit owners, does not create an issue of fact defendants' Accord|ñgly, based on the foregoing, the Vista summary judgment motion is denied. The parties are directed to appear in the Settlernent Conference Part in Courtroom 1600 on October 9, 2018 at 9:15 a.m. The foregoing shall constitute the Decision and Order of the Court. Dated: White Plains, NY August 2.8 , 2018 HON. SAM D. WALKER, J.S.C. Page 6 of 6 - 6 of 6 7 of 8 FILED: WESTCHESTER COUNTY CLERK 09/07/2018 12:02 PM INDEX NO. 60670/2013 NYSCEF DOC. NO. 197 RECEIVED NYSCEF: 09/07/2018 AFFIRMATION OF SERVICE STATE OF NEW YORK: COUNTY OF WESTCHESTER ADAM M. PESKA, Esq., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: On September 7, 2018, the undersigned served NOTICE OF ENTRY by and through the electronic filing system ("ECF") upon: Victoria Weiner, Esq. Milber Makris Plousadis & Seiden LLP 709 Westchester Ave, 3rd Floor White Plains, NY 10601 Dated: White Plains, New York September 7, 2018 ADAM M. PESKA 8 of 8