Preview
FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
__________________________________________X Index No.: 151473/2022
ROBERT TURZILLI and PATRICK CATOE,
Plaintiff(s),
-against-
HP WEST 49TH STREET PORTFOLIO HOUSING
DEVELOPMENT FUND COMPANY, INC.,
NIEUW AMSTERDAM PROPERTY MANAGEMENT,
INC., JOSHUA GOTLIN AND BORUCH HERSH,
Defendant(s).
__________________________________________X
MEMORANDUM OF LAW IN SUPPRORT OF PLAINTIFF’S ORDER TO SHOW CAUSE
FOR A STAY AND RESTORING PLAINTIFF ROBERT TURZILLI TO THIS ACTION
THE BELTAS LAW FIRM
Attorneys for Plaintiff Robert Turzilli
30 Wall Street, 8th Floor
New York, New York 10005
(914)294-4844
BRANDY A. BELTAS, ESQ.
On the Brief
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted to the in support of Plaintiff’s Order to Show Cause for
an Order:
(1) moving to restore the Plaintiff Robert Turzilli, who failed to appear at a conference
and who was dismissed from this matter pursuant to 22 NYCRR 202.27, based upon
reasonable excuse for the default and a meritorious cause of action; and
(2) granting such other and further relief as this Court deems just, proper, and equitable under
all of the circumstances herein.
Plaintiff Robert Turzilli entered into a lease agreement with Defendant 334 West 49th Street
Portfolio Housing Development Fund Company Inc. (hereinafter referred to as Defendant 334)
to rent Apt. 1RE, at 334 West 49th Street, New York, New York (hereinafter referred to as
“Subject Apartment”), for a period of one (1) year. As part of said lease agreement, Mr. Turzilli
agreed to pay Defendant 334 $3,500 per month which he did pay. Co-plaintiff Patrick Catoe was
my roommate while I was living at the Subject Apartment. There was no rent stabilization rider,
or any basis for deregulation of the Subject Apartment attached to Mr. Turzilli’s original lease
and he renewed my lease with Defendant 334 multiple times. Mr. Turzilli’s lease renewals with
Defendant 334 did not contain a rent stabilization rider. (Please see Robert Turzilli’s Affidavit in
Support).
On or about February 15, 2022, Mr. Turzilli requested and obtained a copy of the
Registration Apartment Information from the Division of Housing and Community Renewal
(hereinafter referred to as “DHCR”) he met with an attorney. Attached as Exhibit A is the
Summons and Verified Complaint that the Plaintiffs’ attorney prepared and that both Plaintiffs
reviewed and verified as true. (Please see Exhibit A – Summons and Verified Complaint).
On or about April 25, 2022, Defendants answered the Summons and Verified Complaint by a
Verified Answer. (Please see Exhibit B - Verified Answer).
On or about February 4, 2023, Mr. Turzilli agreed to Attorney George M. Santana’s
withdrawal to represent him and signed an Attorney Withdrawal Pursuant to CPLR § 321(b)(1)
Form (hereinafter referred to as the “Attorney Withdrawal Form”). (Please see Exhibit C –
Attorney Withdrawal Form”). The Co-Plaintiff Patrick Catoe did not sign the Attorney
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Withdrawal Form. It is my understanding speaking with Attorney Santana there was a
preliminary conference calendared for April 18, 2023, and he advised the Plaintiffs about it. Mr.
Turzilli advises that he did not attend the preliminary conference because he did not know that he
was required to appear (Please see attached Affidavit of Robert Turzilli). As a result of Mr.
Turzilli’s non-appearance, along with all the other parties, the Court dismissed the action on or
about April 18, 2023. (Please see Exhibit D – Other Order – Non-motion dated April 18,
2023).
Plaintiff is entitled to the relief sought as he defaulted pursuant to 22 NYCRR 202.27, and he
has a reasonable excuse for the default and a meritorious cause(es) of action which allows the
court to restore the defaulting party back to the instant matter.
ARGUMENT
PURSUANT TO CPLR 5015(A)(1) A MOTION TO OPEN A PARTY’S DEFAULT
REQUIRES REASONABLE EXCUSE FOR FAILING TO APPEAR AND
DEMONSTRATE THE MERITS TO THE CAUSE OF ACTION
Pursuant to CPLR 5015(a):
The court which rendered a judgment or order may relieve a party from it upon
such terms as may be just, on motion of any interested party with such notice as
the court may direct, upon the ground of: 1) excusable default, if such a motion is
made within one year after service of a copy of the judgment or order with written
notice of its entry upon the moving party, or, if the moving party has entered the
judgment or order, within one year after such entry. (CPLR 5015(a))
In Laspalakis, the Court found: [I]n order to prevail on a motion to vacate a default judgment
upon the ground of excusable default under CPLR 5015(a)(1), the moving party must satisfy the
burden of showing a “meritorious claim or defense” and a “reasonable excuse for the default”.
(Laspalakis v. Weinfeld, 2019 N.Y. Slip Op. 31864 (N.Y. Sup. Ct. 2019). The factors in
determining whether a reasonable excuse has been offered is based upon the following factors:
length of delay, prejudice to opposing party, was default willful; and the strong public policy
favoring the resolution of cases on the merits (Id at 3-4, please also see Chevalier v. 368 E. 148th
Street Associates, LLC, 80 A.D.3d 411[1st Dept. 2011].
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PLAINTIFF HAS MERITOROUS CLAIMS
Plaintiff Robert Turzilli can show that he has meritorious claims against Defendants.
Plaintiff Robert Turlizzi entered into a lease agreement with Defendant 334 West 49th Street
Portfolio Housing Development Fund Company Inc. (hereinafter referred to as Defendant 334)
to rent Apt. 1RE, at 334 West 49th Street, New York, New York (hereinafter referred to as
“Subject Apartment”), for a period of one (1) year. As part of said lease agreement, Mr. Turzilli
agreed to pay Defendant 334 $3,500 per month which he did pay. Co-plaintiff Patrick Catoe was
living together with Plaintiff Robert Turlizzi at the Subject Apartment. There was no rent
stabilization rider, or any basis for deregulation of the Subject Apartment attached to Mr.
Turzilli’s original lease and he renewed his lease with Defendant 334 multiple times. Mr.
Turzilli’s lease renewals with Defendant 334 did not contain a rent stabilization rider. (Please
see Robert Turzilli’s Affidavit in Support).
The Plaintiff’s Summons and Complaint goes into details about each of the claims that
Plaintiffs brought against Defendants, including renting to him an improperly deregulated
apartment, rent overcharge, and legal fees. (Please see Exhibit A – Summons and Verified
Complaint). Further, the Verified Complaint includes two exhibits, the rent history from DHCR
and a chart reflecting the rent overcharged for the apartment. Clearly, these claims need to be
litigated to determine how much Plaintiffs have been damaged.
PLAINTIFF HAS REASONABLE EXCUSE FOR HIS DEFAULT
Plaintiff can show that his inadvertent default was reasonable under the circumstances. First the
default occurred on or about April 18, 2023, which was less than one year ago. The delay was
relatively recent. Second, there is no prejudice to the Defendants in this delay. The case was in
its genesis. A discovery conference is scheduled for next week and at that point, the parties will
start the more detailed discovery requests. Third, the Plaintiff’s default was not willful. Plaintiff
Robert Turzilli was representing himself at this point. He is not an attorney and did not realize
that he was required to show up at the preliminary conference. He would have shown up if he
had known. (Please see attached Affidavit of Robert Turzilli).
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The fourth and most important factor is the strong public policy which encourages and favors
resolution of a case on its merits. Montgomery v. Cranes, Inc., 50 A.D.3d 981 (2d Dep’t 2008);
Altairi v. Cineus, 45 A.D.3d 707 (2d Dep’t 2007). If the court denies the Plaintiff Turzilli’s
motion, it would be going against strong public policy in New York to determine a case on its
merits. If Plaintiff Robert Turzilli is not restored back to this case, it would also cause harm to
Co-plaintiff Patrick Catoe’s matter. That’s because many of Patrick Catoe’s claims are based
upon the same claims as Robert Turzilli’s. Litigating them together makes their respective cases
stronger, while also promoting judicial economy.
CONCLUSION
Plaintiff Robert Turzilli has shown that based upon the circumstances and case law his motion to
be restored to the matter makes sense. He has meritorious claims against Defendant and other
related parties for failing to provide him a rent stabilized lease, overcharging him in rent and for
the legal fees to prosecute this matter. His failure to appear at the preliminary conference on
April 18, 2023, was not willful. After no longer having an attorney, sometimes pro se litigants
do not show up to conferences. Although it has caused a brief delay in the litigation of this
matter, it certainly has not been a year. The delay has not caused prejudice to Defendants
because this case is in its mere beginnings. There is a discovery conference scheduled for
September 13, 2023, and Plaintiff Robert Turzilli wants to begin discovery right away.
Therefore, Plaintiff Robert Turzilli respectfully requests this court to grant his motion in its
entirety.
Dated: September 7, 2023 Brandy A. Beltas
________________________
Brandy A. Beltas Esq.
THE BELTAS LAW FIRM
Attorneys for Plaintiff Robert Turzilli
30 Wall Street, 8th Floor
New York, New York 10005
(914)294-4844
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CERTIFICATION OF WORD COUNT
I, Brandy Beltas, the attorney filing the foregoing Order to Show Cause with Stay, Affirmation in
Support and Affidavit in Support, and Memorandum of Law, hereby certify that the documents
filed herewith all comply with 22 NYCRR 202.8-b, in that each document contains less than
7000 words, excluding captions and signature blocks, as counted by the word-processing
program.
Dated: New York, New York
September 7, 2023
Brandy A. Beltas
________________________
Brandy A. Beltas Esq
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Preview
FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK __________________________________________X Index No.: 151473/2022 ROBERT TURZILLI and PATRICK CATOE, Plaintiff(s), -against- HP WEST 49TH STREET PORTFOLIO HOUSING DEVELOPMENT FUND COMPANY, INC., NIEUW AMSTERDAM PROPERTY MANAGEMENT, INC., JOSHUA GOTLIN AND BORUCH HERSH, Defendant(s). __________________________________________X MEMORANDUM OF LAW IN SUPPRORT OF PLAINTIFF’S ORDER TO SHOW CAUSE FOR A STAY AND RESTORING PLAINTIFF ROBERT TURZILLI TO THIS ACTION THE BELTAS LAW FIRM Attorneys for Plaintiff Robert Turzilli 30 Wall Street, 8th Floor New York, New York 10005 (914)294-4844 BRANDY A. BELTAS, ESQ. On the Brief 1 of 6 FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 PRELIMINARY STATEMENT This Memorandum of Law is submitted to the in support of Plaintiff’s Order to Show Cause for an Order: (1) moving to restore the Plaintiff Robert Turzilli, who failed to appear at a conference and who was dismissed from this matter pursuant to 22 NYCRR 202.27, based upon reasonable excuse for the default and a meritorious cause of action; and (2) granting such other and further relief as this Court deems just, proper, and equitable under all of the circumstances herein. Plaintiff Robert Turzilli entered into a lease agreement with Defendant 334 West 49th Street Portfolio Housing Development Fund Company Inc. (hereinafter referred to as Defendant 334) to rent Apt. 1RE, at 334 West 49th Street, New York, New York (hereinafter referred to as “Subject Apartment”), for a period of one (1) year. As part of said lease agreement, Mr. Turzilli agreed to pay Defendant 334 $3,500 per month which he did pay. Co-plaintiff Patrick Catoe was my roommate while I was living at the Subject Apartment. There was no rent stabilization rider, or any basis for deregulation of the Subject Apartment attached to Mr. Turzilli’s original lease and he renewed my lease with Defendant 334 multiple times. Mr. Turzilli’s lease renewals with Defendant 334 did not contain a rent stabilization rider. (Please see Robert Turzilli’s Affidavit in Support). On or about February 15, 2022, Mr. Turzilli requested and obtained a copy of the Registration Apartment Information from the Division of Housing and Community Renewal (hereinafter referred to as “DHCR”) he met with an attorney. Attached as Exhibit A is the Summons and Verified Complaint that the Plaintiffs’ attorney prepared and that both Plaintiffs reviewed and verified as true. (Please see Exhibit A – Summons and Verified Complaint). On or about April 25, 2022, Defendants answered the Summons and Verified Complaint by a Verified Answer. (Please see Exhibit B - Verified Answer). On or about February 4, 2023, Mr. Turzilli agreed to Attorney George M. Santana’s withdrawal to represent him and signed an Attorney Withdrawal Pursuant to CPLR § 321(b)(1) Form (hereinafter referred to as the “Attorney Withdrawal Form”). (Please see Exhibit C – Attorney Withdrawal Form”). The Co-Plaintiff Patrick Catoe did not sign the Attorney 2 of 6 FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 Withdrawal Form. It is my understanding speaking with Attorney Santana there was a preliminary conference calendared for April 18, 2023, and he advised the Plaintiffs about it. Mr. Turzilli advises that he did not attend the preliminary conference because he did not know that he was required to appear (Please see attached Affidavit of Robert Turzilli). As a result of Mr. Turzilli’s non-appearance, along with all the other parties, the Court dismissed the action on or about April 18, 2023. (Please see Exhibit D – Other Order – Non-motion dated April 18, 2023). Plaintiff is entitled to the relief sought as he defaulted pursuant to 22 NYCRR 202.27, and he has a reasonable excuse for the default and a meritorious cause(es) of action which allows the court to restore the defaulting party back to the instant matter. ARGUMENT PURSUANT TO CPLR 5015(A)(1) A MOTION TO OPEN A PARTY’S DEFAULT REQUIRES REASONABLE EXCUSE FOR FAILING TO APPEAR AND DEMONSTRATE THE MERITS TO THE CAUSE OF ACTION Pursuant to CPLR 5015(a): The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested party with such notice as the court may direct, upon the ground of: 1) excusable default, if such a motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry. (CPLR 5015(a)) In Laspalakis, the Court found: [I]n order to prevail on a motion to vacate a default judgment upon the ground of excusable default under CPLR 5015(a)(1), the moving party must satisfy the burden of showing a “meritorious claim or defense” and a “reasonable excuse for the default”. (Laspalakis v. Weinfeld, 2019 N.Y. Slip Op. 31864 (N.Y. Sup. Ct. 2019). The factors in determining whether a reasonable excuse has been offered is based upon the following factors: length of delay, prejudice to opposing party, was default willful; and the strong public policy favoring the resolution of cases on the merits (Id at 3-4, please also see Chevalier v. 368 E. 148th Street Associates, LLC, 80 A.D.3d 411[1st Dept. 2011]. 3 of 6 FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 PLAINTIFF HAS MERITOROUS CLAIMS Plaintiff Robert Turzilli can show that he has meritorious claims against Defendants. Plaintiff Robert Turlizzi entered into a lease agreement with Defendant 334 West 49th Street Portfolio Housing Development Fund Company Inc. (hereinafter referred to as Defendant 334) to rent Apt. 1RE, at 334 West 49th Street, New York, New York (hereinafter referred to as “Subject Apartment”), for a period of one (1) year. As part of said lease agreement, Mr. Turzilli agreed to pay Defendant 334 $3,500 per month which he did pay. Co-plaintiff Patrick Catoe was living together with Plaintiff Robert Turlizzi at the Subject Apartment. There was no rent stabilization rider, or any basis for deregulation of the Subject Apartment attached to Mr. Turzilli’s original lease and he renewed his lease with Defendant 334 multiple times. Mr. Turzilli’s lease renewals with Defendant 334 did not contain a rent stabilization rider. (Please see Robert Turzilli’s Affidavit in Support). The Plaintiff’s Summons and Complaint goes into details about each of the claims that Plaintiffs brought against Defendants, including renting to him an improperly deregulated apartment, rent overcharge, and legal fees. (Please see Exhibit A – Summons and Verified Complaint). Further, the Verified Complaint includes two exhibits, the rent history from DHCR and a chart reflecting the rent overcharged for the apartment. Clearly, these claims need to be litigated to determine how much Plaintiffs have been damaged. PLAINTIFF HAS REASONABLE EXCUSE FOR HIS DEFAULT Plaintiff can show that his inadvertent default was reasonable under the circumstances. First the default occurred on or about April 18, 2023, which was less than one year ago. The delay was relatively recent. Second, there is no prejudice to the Defendants in this delay. The case was in its genesis. A discovery conference is scheduled for next week and at that point, the parties will start the more detailed discovery requests. Third, the Plaintiff’s default was not willful. Plaintiff Robert Turzilli was representing himself at this point. He is not an attorney and did not realize that he was required to show up at the preliminary conference. He would have shown up if he had known. (Please see attached Affidavit of Robert Turzilli). 4 of 6 FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 The fourth and most important factor is the strong public policy which encourages and favors resolution of a case on its merits. Montgomery v. Cranes, Inc., 50 A.D.3d 981 (2d Dep’t 2008); Altairi v. Cineus, 45 A.D.3d 707 (2d Dep’t 2007). If the court denies the Plaintiff Turzilli’s motion, it would be going against strong public policy in New York to determine a case on its merits. If Plaintiff Robert Turzilli is not restored back to this case, it would also cause harm to Co-plaintiff Patrick Catoe’s matter. That’s because many of Patrick Catoe’s claims are based upon the same claims as Robert Turzilli’s. Litigating them together makes their respective cases stronger, while also promoting judicial economy. CONCLUSION Plaintiff Robert Turzilli has shown that based upon the circumstances and case law his motion to be restored to the matter makes sense. He has meritorious claims against Defendant and other related parties for failing to provide him a rent stabilized lease, overcharging him in rent and for the legal fees to prosecute this matter. His failure to appear at the preliminary conference on April 18, 2023, was not willful. After no longer having an attorney, sometimes pro se litigants do not show up to conferences. Although it has caused a brief delay in the litigation of this matter, it certainly has not been a year. The delay has not caused prejudice to Defendants because this case is in its mere beginnings. There is a discovery conference scheduled for September 13, 2023, and Plaintiff Robert Turzilli wants to begin discovery right away. Therefore, Plaintiff Robert Turzilli respectfully requests this court to grant his motion in its entirety. Dated: September 7, 2023 Brandy A. Beltas ________________________ Brandy A. Beltas Esq. THE BELTAS LAW FIRM Attorneys for Plaintiff Robert Turzilli 30 Wall Street, 8th Floor New York, New York 10005 (914)294-4844 5 of 6 FILED: NEW YORK COUNTY CLERK 09/07/2023 09:55 AM INDEX NO. 151473/2022 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 09/07/2023 CERTIFICATION OF WORD COUNT I, Brandy Beltas, the attorney filing the foregoing Order to Show Cause with Stay, Affirmation in Support and Affidavit in Support, and Memorandum of Law, hereby certify that the documents filed herewith all comply with 22 NYCRR 202.8-b, in that each document contains less than 7000 words, excluding captions and signature blocks, as counted by the word-processing program. Dated: New York, New York September 7, 2023 Brandy A. Beltas ________________________ Brandy A. Beltas Esq 6 of 6