Motion-Secondary: Esmelin Pena, Leonela Pena v. Van Courtlandt Assets Llc

On September 23, 2020 a Motion-Secondary was filed involving a dispute between Esmelin Pena, Leonela Pena, and Van Courtlandt Assets Llc, for Other Matters - Contract - Other in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 01/11/2023 01:24 AM INDEX NO. 30724/2020E
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/11/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
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ESMELIN PENA and LEONELA PENA, Index No. 30724/2020E
Douglas, J.
Plaintiffs, (Mot Seq # 2)

--against-- ATTORNEY AFFIRMATION
IN OPPOSITION
VAN COURTLANDT ASSETS LLC,

Defendant.
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THOMAS J. HILLGARDNER, ESQ., an attorney duly admitted to the practice of law

before the Courts of the State of New York, affirms the following to be true under the penalties

for perjury:

1. I am the attorney for the plaintiffs Esmelin Pena and Leonela Pena, and as such I

am fully familiar with the facts set forth herein as is more fully shown below. I make this

affirmation in opposition of the order to show cause of the defendant which seeks an order:

(a) Pursuant to CPLR § 5015, vacating the default judgment, if
any, entered against Defendant for failure to oppose
Plaintiffs' motion dated November 22, 2022;

(b) Permitting Defendant time to file written opposition to
Plaintiff's motion dated November 22, 2022;

2. This is an action for statutory rent overcharge and return of excess security

deposit in connection with the rental of an undisputedly rent-stabilized apartment. Plaintiff

alleges that the overcharge arises from a false claim by defendant that it performed work in the

apartment while it was vacant and prior to Plaintiffs' occupancy entitling itto a rent increase

based upon an individual apartment improvement (IAI), as well as based upon an incorrect

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calculation (by one year) of the amount of a longevity rent increase as the prior tenant lived in

the subject apartment for more than 44 years.

3. On November 22, 2022, with issue joined, discovery in this matter concluded, and

no disclosure remaining outstanding, plaintiffs filed a motion for summary judgment on their

causes of action for rent overcharge and refund of overpayment of a security deposit. The notice

of motion contained a CPLR 2214 (b) notice and was served via NYSCEF 22 days prior to the

return date of December 16, 2022. Accordingly, defendant's opposition papers were due to be

served and filed by December 9, 2022.

4. December 9, 2022 came and went and defendant's attorney failed to submit

opposition papers or contact this office seeking additional time.

5. On December 15, 2022, I had a rare court appearance in Nassau County at the

Nassau County Traffic and Parking Violations Agency. when at 1:34 pm defendant's attorney, by

Micheli Perez, Esq., sent an email to me requesting an adjournment and a briefing schedule on

the motion. Counsel wrote: " We are in receipt of your motion for summary judgment, which is

returnable tomorrow in room 217. Kindly advise if we can arrange a motion schedule for

opposition/reply. Thank you."

6. I did not notice that I received this email from Ms. Perez until I was on the bus

back to my office in Jamaica. My first reaction was to think that Ms. Perez had left her

adjournment request to the proverbial last minute, and that when I make a request for an

adjournment less than 24 hours prior to the calendar call, a proposed stipulation fixing proposed

dates is usually part of my request. But Ms. Perez' email contained no proposed stipulation and

did not even propose any dates. In any event, because I do not enjoy composing lengthy emails

on a cell phone, anticipated being back at my office within the hour, and at that time I was

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willing to adjourn the case and enter into a briefing schedule, I immediately responded, at 3:26

pm, with one word: "Yes." Of course, my thirty years of practice informed me that with my one-

word response I was agreeing to look at a proposed stipulation that needed to be filed by the

return date, December 16, 2022. After December 16, 2022, defendant would need more relief

than merely an adjournment and a briefing schedule, which is all the relief that defendant

requested and all the relief that my "Yes" assented to.

7. Indeed, the Unified Court System website contains a series of web pages for the

Twelfth Judicial District one of which is a webpage titled "Filing Rules" and there under the

heading of "Motion Procedures," in addition to advising parties that all motions are to be made

returnable to the Motion Support Office (Room 217), is the following text:

Motions will be deemed submitted on the return date and
forwarded to Chambers unless a stipulation of adjournment
complying with the requirements of Rule 202.8(e) is filed, in
which event, the motion will be adjourned for the requested date
and adjourned to the submitted motions calendar. If a non-
stipulated request for adjournment or notice is submitted, the
motion and request will be forwarded to Chambers for judicial
approval or denial of the request. The attorney requesting the
adjournment is instructed to notify his adversary of the granting or
denial of the request.

(http://ww2.nycourts.gov/COURTS/12jd/BRONX/Civil/filingrules
.shtml#motionprocedure) (last accessed December 28, 2022).

8. Thus, this Court's rules make clear that failing to do anything prior to the return

date will result in the motion being marked submitted. See also, 22 NYCRR § 202.8 (e).

. 9. In any event, I got back to my office at around 4:30 pm on December 15, 2022

and checked my email, expecting to see in my email inbox from defendant's attorney a proposed

stipulation, or at least an email proposing dates. But there was nothing. I did not think about the

matter again until after 5:00 pm when I again checked my email, but there was no proposed

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stipulation seeking to adjourn the motion and establish a briefing schedule. At that point it started

to look to me like defendant was teetering on the brink of default on the motion.

10. Nonetheless, on Friday morning, December 16, 2022, I was in my office all

morning and I closely monitored my email account looking to see if there would be any

communications from defendant's attorneys in time to file a stipulation adjourning the motion.

First 9:30 am passed, then the entire day passed, and I received no further communication from

defendant's attorneys about the motion that was returnable at 9:30 am of that day.

11. It was not until a week later, on December 23, 2022, that I heard from defendant's

attorneys when Ms. Perez finally sent me an email with a proposed stipulation of adjournment.

12. I did not respond until the next day, December 24, 2022. A true and complete

copy of my email response including all of the aforementioned emails in that email thread is

annexed hereto and made a part hereof as Exhibit 1. Therein I informed defendant's attorneys

inter alia that as the return date had passed, she needed my client's consent to vacate defendant's

default, and that plaintiff's consent would not be forthcoming.

13. On December 28, 2022, defendants' attorneys filed a proposed order to show

cause containing a stay and to bring on a motion inter alia to vacate defendant's default in either

filing a stipulation of adjournment or making a request for an adjournment.

Where defendant's default was willful and defendant makes only a conclusory claim that it
possesses a meritorious defense, defendant is not entitled to any of the relief sought in the
order to show cause.

14. It is well settled that on a motion to vacate a default pursuant to CPLR R. 5015

(a)(1) upon the grounds of excusable default, a movant must make a showing of both a

reasonable excuse for the default and of a meritorious defense to the action. See, Eugene Di

Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141 (1986). What constitutes a reasonable

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excuse for a default "is a discretionary, sui generis determination to be made by the court based

on all relevant factors." Gecaj v. Gjonaj Realty & Management Corp., 149 A.D.3d 600, 603 (1st

Dept. 2017) citing Harcztark v. Drive Variety, Inc., 21 A.D.3d 876, 876-877 (2d Dept. 2005).

"Absent a reasonable excuse, vacatur is not appropriate regardless of whether defendant has a

meritorious defense." Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 A.D.3d 475, 476-477 (1st

Dept. 2016); CPLR 5015 (a)(1). Thus, where the movant fails to proffer a reasonable excuse for

the default, the Court need not consider whether movant possesses a potentially meritorious

defense. U.S. Bank Trust, N.A. v. Rivera, 187 A.D.3d 624 (1st Dept. 2020).

15. As is more fully shown below, defendants show neither a reasonable excuse for

its default nor a meritorious defense to this action.

(a) Reasonable Excuse

16. Law office failure may constitute a reasonable excuse for a default. Youni Gems

Corp. v. Bassco Creations, Inc., 70 A.D.3d 454, 455 (1st Dept. 2010). However, when an

attorney asserts law office failure as an alleged "reasonable excuse" for a default in appearing in

opposition to a motion, the attorney is required to specify in detail the conduct that constitutes

the law office failure, and conclusory and perfunctory affidavits will not do. Pichardo-Garcia v.

Josephine's Spa Corp., 91 A.D.3d 413 (1st Dept. 2013). And in any event, and regardless of

whether it is the return date of a motion, a scheduled court conference, or the date fixed for

inquest or trial, when counsel is aware of a court date and fails to appear or take any steps to

notify the court of its need for an adjournment, the default is willful, the excuse of law office

failure is unreasonable, and there is no reasonable excuse for the default. See id.; Youni Gems

Corp. v. Bassco Creations, Inc., supra; Fuchs v. Midali Am. Corp., 260 A.D.2d 318 (1st Dept.

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1999); Teachers Ins. & Annuity Assn. of Am. v. Code Beta Group, 204 A.D.2d 193 (1st Dept.

1994).

17. Here, counsel for defendant alleges that by virtue of her receipt of opposing

counsel's one-word email agreeing to entertain a discussion regarding adjournment and a briefing

schedule, that it was okay to let the return date of the motion pass without any further substantive

conversations with counsel about the proposed adjourn date, the parameters of the briefing

schedule, and without advising the Court as to the parties' intentions with the motion.

18. Given the clear rules for motions in the Twelfth Judicial District, see, supra ¶ 7,

this is not a reasonable excuse for a calendar default on a motion. Counsel's December 15, 2022

email makes clear that she was aware that December 16, 2022 was the return date of plaintiffs'

summary judgment motion and once plaintiff's attorney indicated that he was amenable to

entering into a stipulation of adjournment and briefing schedule, it became incumbent upon

defendant's attorney to secure that stipulation and file it with the clerk by the return date, or in

the absence of a stipulation, to make an appropriate application for an adjournment. See id.

However, after plaintiff's attorney indicated a general assent to grant defendant an adjournment

of unspecified length, defendant's counsel made no effort to secure an agreement or otherwise

make an application for an adjournment. The motion was marked "submitted" on December 16,

2022.

19. This is a willful default. Counsel was aware that December 16, 2022 was the

return date of plaintiffs' summary judgment motion yet made no effort to actually obtain her

adversary's signature on a stipulation of adjournment, or contact the court and actually request an

adjournment. See, Youni Gems Corp. v. Bassco Creations, Inc., supra (default in appearing at

inquest); Pichardo-Garcia v. Josephine's Spa Corp., supra (default in appearing at court

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conference); Fuchs v. Midali Am. Corp., 260 A.D.2d 318 (1st Dept. 1999) (default in appearing

for trial); Teachers Ins. & Annuity Assn. of Am. v. Code Beta Group, 204 A.D.2d 193 (1st Dept.

1994) (same). Thus, there is no reasonable excuse for defendant's default and the motion to

vacate defendant's default must be denied.

(b) Meritorious defense

20. Assuing arguendo that the Court finds that defendant's attorneys make a showing

of a reasonable excuse for its default sufficient to permit this Court to consider whether

defendant has a potential meritorious defense, defendant fails to make anything other than a

conclusory showing of a meritorious defense to this action. The affidavit of Rinaldo Toporovsky

states: "Defendants have not overcharged plaintiffs in rent. The legal rents were increased based

on individual apartment improvements conducted in the apartment and longevity

increase....Defendant has a meritorious defense to this action in that itproperly increased the

legal rents prior to Plaintiffs taking occupancy of the apartment."

21. On plaintiff's motion for summary judgment, plaintiff uploaded to NYSCEF as

exhibits to that motion all documentary evidence supplied by defendant in the course of

disclosure, and there is no evidence which would entitle defendant to any rent increase based

upon any IAI because there is zero evidence of payment of any money by defendant for the

claimed IAI.

22. A review of plaintiffs' motion for summary judgment reveals that in discovery in

this matter defendant failed to come up with any evidence of expenditures to justify any IAI rent

increase, let alone an increase of the size defendant took. In fact, defendant produced zero proof

of payment, and even including the invoices that included work done in other apartments and for

ordinary repairs and maintenance, the invoices (none of which were marked "paid") came

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nowhere near the dollar amount required to justify an IAI rent increase of the magnitude taken by

defendant. 1 On page 24-25 of plaintiffs' memorandum of law in support of the motion for

summary judgment, plaintiffs' attorney writes:

Here, Landlord presents virtually no documentary evidence
whatsoever supporting its claim that bathroom and kitchen
renovations were performed, or that any equipment installed had
outlived its useful life, while the documentary evidence actually
submitted is almost all for routine maintenance and repairs
including, painting and plastering, sanding, staining, and
lacquering the hardwood floor, new vinyl kitchen floor tiles,
window blinds, and the reglazing of the bathtub. See, Hillgardner
Afr. ¶ 7 (Exh. H). None of this work constitutes work eligible for a
rent increase based upon an IAI. See, Matter of Graham Ct.
Owners Corp. v Division of Hous. & Community Renewal, 71
A.D.3d at 515; Mayfair York Co. v. New York State Div. of Hous.
& Community Renewal, 240 A.D.2d at 158; Matter of 247-253 W.
116 LLC v. New York State Div. of Hous. & Community Renewal,
178 A.D.3d at 482. Indeed, the documentary evidence supplied
bolsters the view that the taking of this rent increase by defendant
in the vacancy lease was knowingly unlawful in that (1) the totality
of all of the expenses claimed in defendant's invoices does not
approach the total needed to justify a claim of a $480.73 rent
increase based upon an IAI; (2) the vast majority of the work
shown on all of the invoices submitted appears to be normal
repairs and maintenance that is ineligible for a rent increase as an
IAI; (3) much of the work detailed on several of the invoices was
for work on other apartments; and (4) there is no proof of payment
for any of the goods or services evidenced by any of the invoices
or bills. See, Hillgardner Afr. ¶ 7 (Exh. H).

Furthermore, defendants lack any evidence that any of the
equipment allegedly replaced had outlived its useful life. See, RSC
§ 2522.4 (a)(11). There are no "before" and "after" photographs
showing the condition of the apartment and any of the equipment
allegedly replaced, and the inference as to why militates strongly
in favor of plaintiffs' argument that such photographs would have
shown that there was no need to replace any equipment.

1
With 89 apartments in the building, under the pre-HSTPA law that is applicable in this case, an IAI rent increase is
1/60th of the total cost of the improvements. See, RSC § 2522.4 (a)(4). Thus, defendant needs to show that it
expended $28,843.80 on eligible improvements in order to justify the $480.73 IAI rent increase claimed
8

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Moreover, the company A & A Property Maintenance Service, Inc.
(A & A), whose invoices are submitted in support of the claimed
renovation, shares Suite H at 179 Cedar Lane, Teaneck, New
Jersey 07666 and P.O. Box 331, Teaneck, New Jersey 07666 with
Toporovsky Realty Corp., the real management company for the
building. See, Hillgardner Afr. ¶ 16. The chief executive officer of
A & A is R.H. Toporovsky, who upon information and belief is
one of the principals of the building. See, Hillgardner Afr. ¶ 16.
Since the enactment of the HSTPA, such invoices would be
disallowed in their entirety. See, RSL § 26-511 (c)(13). But even
under the old law the need for documentary evidence establishing
that goods and services actually were paid for is heightened when
there is evidence of common ownership as the persuasive force of
the evidence is lessened by the interest of the principal, Rinaldo
Toporovsky, in both the building and the vendor. See, Jemrock
Realty LLC v. Krugman, 13 N.Y.3d at 924. But there is no proof
that defendant paid one dime towards any work. Accordingly, the
IAI rent increase of $480.73 should be disallowed in its entirety.

Plaintiffs' Memorandum of Law in Support of Motion for Summary
Judgment at 24-25 (footnote omitted).

23. This action was commenced in September 2020 and this motion for summary

judgment was served on November 22, 2022. Defendant's principal has had more than two years

to come up with proof of payment of money in support of its claimed IAI rent increase and it has

utterly failed to do so. Defendant offered only conclusory claims that the work was performed in

its responses to plaintiff's interrogatories and bill of particulars.

24. Now, despite its inability in two years to produce proof of any payment of any

money in support of the claimed IAI rent increase, on this motion to vacate a default in

answering the motion for summary judgment, defendant's attempt at a showing of a meritorious

defense is solely Rinaldo Toporovky's say-so. Defendant fails to come forward with any

evidence that it paid anyone any money whatsoever for labor or goods in connection with the

claimed IAI allegedly performed in plaintiff's apartment.

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25. Moreover, defendant has already proven in its answers to interrogatories, see,

(NYSCEF Doc. No. 22), that it refuses to acknowledge that the work evidenced by its invoices

supplied during the course of discovery, besides much of it being for apartments other than the

subject premises, is for ordinary repairs and maintenance that is ineligible for treatment as an

IAI. See, Response to Interrogatory # 11. Painting, plastering, sanding the floors, taking up fifty-

year-old linoleum and laying down cheap vinyl floor tiles, replacing fifty-year-old blinds with

cheap venetian blinds, reglazing a bathtub - all work disallowed as shown by Appellate Division

precedent cited in plaintiff's memorandum of law in support of their motion for summary

judgment. See, supra ¶ 22.

26. Moreover, defendant is not entitled to an IAI rent increase absent proof of

payment of the costs. See, Matter of Hanjorgiris v. Lynch, 298 A.D.2d 251 (1st Dept. 2002);

DHCR Policy Statement 90-10 [June 26, 1990]). In Jemrock Realty LLC v. Krugman, 13 N.Y.3d

924 (2010), a case concerned with invoices marked "paid" that contained both eligible and

ineligible work but that failed to provide a breakdown between the amount spent on eligible IAI

work and ineligible ordinary maintenance and repairs, the Court of Appeals held that the

resolution of the issue of the sufficiency of landlord's proofs is not governed by any inflexible

rule either that a landlord is always required or never required to submit an item-by-item

breakdown showing an allocation between improvements and repairs but, rather, is a question to

be resolved by the factfinder based upon the persuasive force of the evidence submitted by the

parties. See id. at 926. Here, where there is zero proof of actual payment of money for any goods

or labor supplied, and the invoices submitted are mostly for work that constitutes ordinary repair

and maintenance, the persuasive force of defendant's evidence is zero. Defendant needs to stop

wasting the court's and everyone else's time pretending it has evidence of and IAI when it does

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not; that it is entitled to the LAI rent increase, when itis not. On thi s record , defendant makes no

showing of a meritorious defense on the IAI rent increase issue in the absence of production of

any evidence that it paid any money toward the alleged cost of eligible improvements.

27. Moreover, defendant clearly miscalculated the longevity increase claiming

entitlement to an increase based on 45 years when the Gregorian calendar and documentary

evidence shows that the length of the prior tenant's term of occupancy was only 44 years.

28. Finally, given the dearth of any evidence submitted on this motion to support the

contention that defendant has a meritorious defense, and given plaintiffs' evidence on the motion

for summary judgment showing that defendant took an almost $500 rent increase without a speck

of documentary evidence supporting its entitlement thereto, defendant has no meritorious

defense to a finding that the rent overcharge was willful , which in any event is presumed. See,

former Admin. Code of the City of New York § 26-516 (a).

29. Defendant fail sto establish both a reasonable excuse for its default and a

meritorious defense to the act ion and thus, notwithstanding that "there exists a strong public

po licy in favor of disposing of cases on their merits," Johnson-Roberts v. Ira Judelson Bail

Bonds, 140 A.D.3d 509, 509 ( I st Dept. 2016), defendant is not entitled to the relief sought in the

order to show cause.

~ESQ
DATED : Jamaica, New York
January 10, 2023

~
torne for Plaintiffs
2-63 70th Street
lca, New York 11432
(718) 657-0606
·tomhillgardner@gmail.com

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Laura G Douglas Track Judge’s New Case

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Document Filed Date

January 11, 2023

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September 23, 2020

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Motion-Secondary: Esmelin Pena, Leonela Pena v. Van Courtlandt Assets Llc

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