Preview
FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: IAS PART 6
___________.._______________________________________________Ç
ESMELIN PENA and LEONELA PENA,
Plaintiff(s), AFFIRMATION IN REPLY
Index No.: 30724/2020E
-against-
VAN COURTLANDT ASSETS LLC,
Defendant.
___________________________________________________________Ç
MICHELI I. PEREZ, ESQ., an attorney duly authorized to practice law in the courts of the
State of New York hereby affirms, upon information and belief, the following pursuant to
C.P.L.R. §2106:
1. I am associated with the law firm of NOVICK EDELSTEIN POMERANTZ, P.C.
("Novick Edelstein"), attorneys for Defendant, Van Courtlandt Assets LLC ("Defendant").
2. After a review of the files kept by this office and conversations with
Defendant, I am thoroughly familiar with the facts and circumstances contained herein.
3. I submit this reply to Plaintiff's opposition to Defendants motion to vacate
a default.
4. As previously indicated in my affirmation in support of the instant Order to
Show Cause, the only reason I failed to submit written opposition to Plaintiff's motion by
December 16, 2022 is because Counsel responded to my email in the affirmative when I
requested an adjournment and motion schedule. This constitutes a reasonable excuse
for the default. See, Pomerantz v. Long Island Paneling Co., 541 N.Y.S.2d 537 (1989)
(acknowledging that a "law officer failure may justify a defaulf').
5. In its opposition papers, Plaintiff seeks to establish that even where an
1 of 7
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NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023
excusable default Is Defendant does not have a meritorious defense to the
found,
proceeding/summary judgment motion. However, itdoes.
6. Defendant has a good and meritorious defense herein justifying a vacating
of the default and granting additional time to file written opposition to the pending
summary judgment motion.
7. In its opposition papers, Plaintiff seeks to establish that even where an
excusable default is found, Defendant does not have a meritorious defense to the
proceeding/summary judgment motion. However, itdoes.
8. Summary judgment is a drastic remedy. Zuckerman v. City of New York,
49 N.Y.2d 557, 562 (1980). It is only granted where no material issues of fact exist.
Novel, et. Al. v. 325 Wadsworth Realty LLC et. al., 2012 NY Misc. LEXIS 4705 at *3-*4
(N.Y. Sup. Ct. Sept. 25, 2012), citina, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324
(1986). The burden lies with the movant to establish the absence of any material issue
of fact. RL, citina, Wineqrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). The
Court views the evidence in the light most favorable to the nonmoving party, giving the
benefit of all reasonable inferences that can be drawn from the evidence. EL, citina,
Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The function is
not to resolve issues or judge their merits, but rather only to determine whether any
material issues of fact existat that juncture. IdL (emphasis added). Summary Judgment
is likewise not an appropriate posture to determine credibility of the parties. S.J. Capelin
Associates, Inc. v. Globe Mfq. Corp., 34 N.Y.2d 338, 341 (1974). Where "conflicting
drawn"
inferences reasonably could have been from the competing affidavits of the
parties, summary judgment must be denied. Cordero v. Kaiser Orq. Inc., 228 A.D.2d
2 of 7
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NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023
(2nd
424, 425 Dept. 2001).
9. In order to meet the threshold for summary judgment, Plaintiffs must
demonstrate that Respondent willfully and improperly increased the rent for the subject
premises during the last four years. See, Regina Metropolitan Co. LLC v. DHCR, et al.,
2020 NY Slip Op 02127.
10. Plaintiffs argue that Defendant does not substantiate the individual
apartment improvements conducted in the apartment prior to them taking possession
and are thus entitled to an award of rent overcharge and treble damages.
11. Pursuant to the affidavit of Rinaldo Toporovsky, which is annexed to the
Order to Show Cause, prior to Plaintiffs taking occupancy of the apartment Respondents
incurred a substantial amount of money in renovations.
12. Mr. Toporovsky acknowledges that Defendant may not have immediate
access to all of the paperwork calculating the IAIs done in the apartment, but that is
insufficient to yield a finding on the papers that there was a willful overcharge. The issue
of willfulness is a material issue of fact that should be assessed in court, and not on
default.
13. The bottom line is that whether the amount of rent charged to Plaintiffs is
improper, as Counsel suggests, is a matter that should be decided at trial, not at a
summary judgment level. See, 11 Jones Street Association v. Orbach, 168 Misx.2d 511
(1996) ("Tenants were not entitled to recover treble damages for rent overcharge based
solely on landlord's failure to file a timely or proper initial or annual rent registration
statement... Genuine issue of material fact existed as to whether landlord willfully
collected a rent overcharge, precluding summary judgment...").
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14. Plaintiffs will not suffer prejudice if the instant motion is granted. On
any
the other Defendant will be prejudiced if itis not given the opportunity
hand, extremely
to fully address the summary judgment motion.
15. Courts are interested in whether the facts as alleged fit within any
cognizable legal theory, not whether one was stated. Here, Defendant has a defense to
Plaintiffs'
a cause of action and deserves to have its day in court to demonstrate as such.
"A"
Annexed hereto as Exhibit is a copy of documentation, including checks, Defendant
gathered to substantiate the rent increase based on individual apartment improvements.
16. Furthermore, Defendant did not waste an unreasonable amount of time to
filethe instant motion. The fact is that an actual default judgment has not been entered
by the Court. This OSC was filed on December 28, 2022, immediately after Counsel
indicated that his clients were not willing to sign off on the stipulation with motion
schedule after Counsel indicated via e-mail that he was willing to enter into such a
stipulation. While the case was scheduled for submission on December 16, 2022, in his
email he did not indicate that he wanted the stipulation sent to him prior to December
16, 2022. Thus, I reasonably believed that when I sent him the stipulation a few days
later itwould be acceptable.
17. "A vacatur of a default judgment lies within the discretion of the trial
court..."
See, Chase Manhattan Automotive Fin. Corp. v. AIIstate Ins. Co., 272 A.D.2d
772 (2000).
18. In Abel v. Estate of Collins, 73 A.D.3d 1423 (2010), the court vacated a
default where Defendant made an initial request for an extension which was it was
granted, and there was no prejudice to Plaintiff.
4 of 7
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19. in Baptist Health Nursing and Rehabilitation Center, Inc. v. Baxter,
Similarly,
140 A.D.3d 1386 (2016), the court also vacated a default. The court indicated that
"although we note that defendant's affidavit submitted in support of her motion is not a
model of particularity, keeping in mind that the 'quantum proof needed to prevail on a
CPLR 5015(a)(1) motion is not as great as that required to successfully oppose a motion
for summary judgment', the policy of resolving cases on their merits and taking into
whole"
account the record as a is proper. See also, Diversified Development Corp. v.
Stavitsky, 41 A.D.2d 521 (1973) ("[w]here sufficient possibility of a meritorious defense
was shown on motion to vacate default, and imposition of full punitive damages allowed
under Real Property Laws was something which deserved a full hearing on merits, trial
court abused its discretion in not vacating the default judgment upon appropriate
conditions, even absent a full satisfactory explanation of defendant's failure to answer
timely").
20. As this Court well knows, there are hundreds to thousands of cases wherein
vacatur of default is granted as courts prefer deciding cases on the merits, not on default.
Defendant is not asking for an extraordinary amount of time to filewritten opposition.
Merely two to three weeks from when a decision is entered in this case.
21. Based on the foregoing, and in the interest of justice, the Defendant's
motion to vacate the default should be granted and a motion schedule arranged for
Defendant to formally filewritten opposition to Plaintiff's motion for summary judgment.
5 of 7
FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023
WHEREFORE, Defendant request that this Court grant its motion in
respectfully
itsentirety, along with granting such other and further relief as this Court may deem just
and proper.
Dated:Yonkers, New York
January 12, 2022
Micheli I. Perez, Esq.
NOVICK EDELSTEIN POMERANTZ, P.C.
Attorneys for Defendant
6th
733 Yonkers Avenue, Floor
Yonkers, NY 10704
Tel. (914) 375-0100
Fax (914) 375-0699
Email: mperez@novickedelstein.com
To: Thomas J. Hillgardner, Esq.
Attorneys for Plaintiff
170th
82-63 treet
Jamaica, NY 11432
Tel. (718) 657-0606
Email: tomhillqardner@qmail.com
6 of 7
FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023
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Preview
FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: IAS PART 6 ___________.._______________________________________________Ç ESMELIN PENA and LEONELA PENA, Plaintiff(s), AFFIRMATION IN REPLY Index No.: 30724/2020E -against- VAN COURTLANDT ASSETS LLC, Defendant. ___________________________________________________________Ç MICHELI I. PEREZ, ESQ., an attorney duly authorized to practice law in the courts of the State of New York hereby affirms, upon information and belief, the following pursuant to C.P.L.R. §2106: 1. I am associated with the law firm of NOVICK EDELSTEIN POMERANTZ, P.C. ("Novick Edelstein"), attorneys for Defendant, Van Courtlandt Assets LLC ("Defendant"). 2. After a review of the files kept by this office and conversations with Defendant, I am thoroughly familiar with the facts and circumstances contained herein. 3. I submit this reply to Plaintiff's opposition to Defendants motion to vacate a default. 4. As previously indicated in my affirmation in support of the instant Order to Show Cause, the only reason I failed to submit written opposition to Plaintiff's motion by December 16, 2022 is because Counsel responded to my email in the affirmative when I requested an adjournment and motion schedule. This constitutes a reasonable excuse for the default. See, Pomerantz v. Long Island Paneling Co., 541 N.Y.S.2d 537 (1989) (acknowledging that a "law officer failure may justify a defaulf'). 5. In its opposition papers, Plaintiff seeks to establish that even where an 1 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 excusable default Is Defendant does not have a meritorious defense to the found, proceeding/summary judgment motion. However, itdoes. 6. Defendant has a good and meritorious defense herein justifying a vacating of the default and granting additional time to file written opposition to the pending summary judgment motion. 7. In its opposition papers, Plaintiff seeks to establish that even where an excusable default is found, Defendant does not have a meritorious defense to the proceeding/summary judgment motion. However, itdoes. 8. Summary judgment is a drastic remedy. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). It is only granted where no material issues of fact exist. Novel, et. Al. v. 325 Wadsworth Realty LLC et. al., 2012 NY Misc. LEXIS 4705 at *3-*4 (N.Y. Sup. Ct. Sept. 25, 2012), citina, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). The burden lies with the movant to establish the absence of any material issue of fact. RL, citina, Wineqrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). The Court views the evidence in the light most favorable to the nonmoving party, giving the benefit of all reasonable inferences that can be drawn from the evidence. EL, citina, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). The function is not to resolve issues or judge their merits, but rather only to determine whether any material issues of fact existat that juncture. IdL (emphasis added). Summary Judgment is likewise not an appropriate posture to determine credibility of the parties. S.J. Capelin Associates, Inc. v. Globe Mfq. Corp., 34 N.Y.2d 338, 341 (1974). Where "conflicting drawn" inferences reasonably could have been from the competing affidavits of the parties, summary judgment must be denied. Cordero v. Kaiser Orq. Inc., 228 A.D.2d 2 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 (2nd 424, 425 Dept. 2001). 9. In order to meet the threshold for summary judgment, Plaintiffs must demonstrate that Respondent willfully and improperly increased the rent for the subject premises during the last four years. See, Regina Metropolitan Co. LLC v. DHCR, et al., 2020 NY Slip Op 02127. 10. Plaintiffs argue that Defendant does not substantiate the individual apartment improvements conducted in the apartment prior to them taking possession and are thus entitled to an award of rent overcharge and treble damages. 11. Pursuant to the affidavit of Rinaldo Toporovsky, which is annexed to the Order to Show Cause, prior to Plaintiffs taking occupancy of the apartment Respondents incurred a substantial amount of money in renovations. 12. Mr. Toporovsky acknowledges that Defendant may not have immediate access to all of the paperwork calculating the IAIs done in the apartment, but that is insufficient to yield a finding on the papers that there was a willful overcharge. The issue of willfulness is a material issue of fact that should be assessed in court, and not on default. 13. The bottom line is that whether the amount of rent charged to Plaintiffs is improper, as Counsel suggests, is a matter that should be decided at trial, not at a summary judgment level. See, 11 Jones Street Association v. Orbach, 168 Misx.2d 511 (1996) ("Tenants were not entitled to recover treble damages for rent overcharge based solely on landlord's failure to file a timely or proper initial or annual rent registration statement... Genuine issue of material fact existed as to whether landlord willfully collected a rent overcharge, precluding summary judgment..."). 3 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 14. Plaintiffs will not suffer prejudice if the instant motion is granted. On any the other Defendant will be prejudiced if itis not given the opportunity hand, extremely to fully address the summary judgment motion. 15. Courts are interested in whether the facts as alleged fit within any cognizable legal theory, not whether one was stated. Here, Defendant has a defense to Plaintiffs' a cause of action and deserves to have its day in court to demonstrate as such. "A" Annexed hereto as Exhibit is a copy of documentation, including checks, Defendant gathered to substantiate the rent increase based on individual apartment improvements. 16. Furthermore, Defendant did not waste an unreasonable amount of time to filethe instant motion. The fact is that an actual default judgment has not been entered by the Court. This OSC was filed on December 28, 2022, immediately after Counsel indicated that his clients were not willing to sign off on the stipulation with motion schedule after Counsel indicated via e-mail that he was willing to enter into such a stipulation. While the case was scheduled for submission on December 16, 2022, in his email he did not indicate that he wanted the stipulation sent to him prior to December 16, 2022. Thus, I reasonably believed that when I sent him the stipulation a few days later itwould be acceptable. 17. "A vacatur of a default judgment lies within the discretion of the trial court..." See, Chase Manhattan Automotive Fin. Corp. v. AIIstate Ins. Co., 272 A.D.2d 772 (2000). 18. In Abel v. Estate of Collins, 73 A.D.3d 1423 (2010), the court vacated a default where Defendant made an initial request for an extension which was it was granted, and there was no prejudice to Plaintiff. 4 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 19. in Baptist Health Nursing and Rehabilitation Center, Inc. v. Baxter, Similarly, 140 A.D.3d 1386 (2016), the court also vacated a default. The court indicated that "although we note that defendant's affidavit submitted in support of her motion is not a model of particularity, keeping in mind that the 'quantum proof needed to prevail on a CPLR 5015(a)(1) motion is not as great as that required to successfully oppose a motion for summary judgment', the policy of resolving cases on their merits and taking into whole" account the record as a is proper. See also, Diversified Development Corp. v. Stavitsky, 41 A.D.2d 521 (1973) ("[w]here sufficient possibility of a meritorious defense was shown on motion to vacate default, and imposition of full punitive damages allowed under Real Property Laws was something which deserved a full hearing on merits, trial court abused its discretion in not vacating the default judgment upon appropriate conditions, even absent a full satisfactory explanation of defendant's failure to answer timely"). 20. As this Court well knows, there are hundreds to thousands of cases wherein vacatur of default is granted as courts prefer deciding cases on the merits, not on default. Defendant is not asking for an extraordinary amount of time to filewritten opposition. Merely two to three weeks from when a decision is entered in this case. 21. Based on the foregoing, and in the interest of justice, the Defendant's motion to vacate the default should be granted and a motion schedule arranged for Defendant to formally filewritten opposition to Plaintiff's motion for summary judgment. 5 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 WHEREFORE, Defendant request that this Court grant its motion in respectfully itsentirety, along with granting such other and further relief as this Court may deem just and proper. Dated:Yonkers, New York January 12, 2022 Micheli I. Perez, Esq. NOVICK EDELSTEIN POMERANTZ, P.C. Attorneys for Defendant 6th 733 Yonkers Avenue, Floor Yonkers, NY 10704 Tel. (914) 375-0100 Fax (914) 375-0699 Email: mperez@novickedelstein.com To: Thomas J. Hillgardner, Esq. Attorneys for Plaintiff 170th 82-63 treet Jamaica, NY 11432 Tel. (718) 657-0606 Email: tomhillqardner@qmail.com 6 of 7 FILED: BRONX COUNTY CLERK 01/12/2023 11:26 AM INDEX NO. 30724/2020E NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 01/12/2023 lekswa YORK AdcIress. admitted. C p hEW M3tERANTz, t(s)- for OF PENA, Averius REPLY Oimm 107D4 2020E Defendar hereby Attomey(s) 6 5TATE Piantiffs, l-LC, 375-0100 PART within LEONELA I¾d YEAR: -AGAINST- EDElSTEIN. Vorikers APRRMATIONIN NY ASSETS is THEIAI Yorikers, Officeand oIme (914) / OF BRONX: 733 and for 30724 OOL)RTLANDf COlJRT NO/lcK,Attorney copy PENA for M1: OF To: Attomey(s.) a or $UPREME E5MELJN COlJNTY ServiceDated, INDEX VAN P.C. (cert#ied) POMERANTZ, 2023 prescrited withan 2023 ADDRESS the P,C, SETT1_EMt-riT a rs of be EDELSTE1N, ETC. will ParnetarH.L mthin derk OFFICE orelerc..opy aneAvesin A]4 YOURS, the the AVENUE F OF I 1(1704 In.1e etc. ersNY of an affice that POST FIon. Edebtein, NOVICK, that MITlR hrik office CEENrut a Yours, post er notice YONKERS NY of AND rKitice Is the M. 3 tr& the YONKERS, FOR within Day 13 And f to Novki, take on FOR NTKE take ATTORNEY(5) settlernent a m OFFlR of cotrt entered 733 TO: tlie OTe Scr:-Please ATTORNEY 51R:·Rease to copy which attorrey Dated: Dated, narned the trueduly of foron at 7 of 7