Preview
FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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JACQUES PENA-SYLVAIN,
Plaintiff, Index No. 304366/2014E
-against-
2015 UNIVERSITY PROPERTIES CORP., GLADYS
NUNEZ, JUAN PERALTA, LINDA HERNANDEZ,
AND RUBEN GARCIA,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT LINDA HERNANDEZ’S MOTION FOR SUMMARY JUDGMENT
SOKOLOFF STERN LLP
Attorneys for Defendant
Linda Hernandez
179 Westbury Avenue
Carle Place, New York 11514
(516) 334-4500
File No. 140152
Of Counsel:
Kiera J. Meehan
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PRELIMINARY STATEMENT
This memorandum of law is respectfully submitted on behalf of defendant Linda
Hernandez in support of her motion pursuant to CPLR §3212 for summary judgment, dismissing
the plaintiffs’ complaint because Ms. Hernandez cannot be found liable under any of plaintiff’s
alleged causes of action.
Plaintiff, Jacques Sylvain Pena commenced this action asserting negligence, negligent
hiring, assault and battery, and wrongful eviction, all in connection with personal injuries he claims
to have sustained when he was allegedly assaulted by co-defendants Gladys Nunez, Juan Peralta,
and Reuben Garcia, on Mach 20, 2014. At the time of the alleged assault plaintiff was illegally
subletting a room in the apartment of an apartment leased to Gladys Nunez.
As set forth below, and in the accompanying affirmation of Kiera J. Meehan, and statement
of undisputed facts, all claims against Ms. Hernandez must be dismissed as she never met the
plaintiff. As plaintiff admits Ms. Hernandez had no role whatsoever in the alleged assault and
battery. Moreover, Ms. Hernandez, who is an employee of Langsam Properties, a property
management company, owed no duty to plaintiff
Finally, plaintiff was not a tenant as he illegally sublet an apartment from another
leaseholder so he has no claim for wrongful eviction.
Accordingly, Ms. Hernandez is entitled to summary judgment.
STATEMENT OF FACTS
The facts of this matter have been set forth in the accompanying affirmation of Kiera J.
Meehan, dated February 4, 2022, and Statement of Undisputed Facts pursuant to Rule 202.8-g.
For the sake of brevity, they will not be repeated herein.
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ARGUMENT
POINT I
PLAINTIFF NEVER MET MS. HERNANDEZ SO HE HAS NO ASSAULT OR
BATTERY CLAIM AGAINST HER
To sustain a cause of action to recover damages for assault, there must be proof of physical
conduct placing the plaintiff in imminent apprehension of harmful contact. Kuznitz v. Funk, 187
A.D.3d 1006, 1006 (2d Dep’t 2020) (quoting Bastein v. Sotto, 299 A.D.2d 432, 433 (2d Dep’t
2002). To recover damages for battery, a plaintiff must prove that there was bodily contact, that
the contact was offensive, and that the defendant intended to make the contact without the
plaintiff's consent. Kuznitz, 187 A.D.3d at 1006 (quoting Basetein 299 A.D.2d at 433).
Plaintiff has never met Ms. Hernandez, much less had any physical contact with her. (See
Ex. L at 31:22-36:13; see also Ex. I at 188:4-13; see also Ex. K at 87:15-89:22). As plaintiff admits
Ms. Hernandez played no party in the alleged assault and battery, these claims against her must be
dismissed.
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POINT II
PLAINTIFF HAS NO NEGLIGENCE CLAIM AGAINST MS. HERNANDEZ
Plaintiff cannot maintain a negligence claim against Linda Hernandez because Hernandez
owed plaintiff no duty to Pena, a man she has never met. Ms. Hernandez does not own the premises
where the accident occurred. Nor did she employ any of the individuals allegedly involved in the
assault. Rather, she is merely an employee of a property management company, Langsam
Properties Inc. (“Langsam”). Plaintiff does not even allege that Hernandez took party in the assault
or engaged in any conduct outside the scope of her employment. Notably, Langsam is not even a
defendant in this litigation.
Accordingly, there is no basis to hold Ms. Hernandez personally liable as it is undisputed
that Ms. Hernandez did not own the premises where the incident occurred and there is no evidence
that she acted outside the scope of her role as a property manager for Langsam, or that she
independently engaged in tortious conduct. Diaz-Pascall v Pereira, 191 AD3d 594 [1st Dept 2021];
Mendez v City of New York, 259 AD2d 441, 442 [1st Dept 1999]
POINT III
PLAINTIFF WAS NOT A TENANT SO HE HAS NO WRONGFUL EVICTION CLAIM
Plaintiff alleges that he was wrongfully evicted from Ms. Nunez’s apartment several
months after the incident. But he cannot recover damages for wrongful eviction, as he was never
a lawful tenant of the apartment. The original lease at 2015 University Avenue did not permit
subletting of the apartment. (See Ex. L at 31:22-33:14, 84:23-85:8; Ex. I at 53:3-54:23, 78:16-22).
Sub tenancy is dependent upon the original lease and may be terminated upon reentry of the
landlord for a condition broken. Precision Dynamics Corp. v. Retailers Representatives, Inc., 120
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Misc.2d 180 (Civil Court, City of New York, New York County 1983). A non-tenant has no
possessory interest in the property and may be ousted by landlord without legal process. P & A
Bros. v. City of New York Dep't of Parks & Recreation, 184 A.D.2d 267, 268 (1st Dep’t 1992).
Thus, plaintiff’s ousting from the apartment after Ms. Nunez’s eviction sometime around
December 2014 or January 2015 was perfectly legal because he was not a tenant (See Ex. L at
31:22-33:14, 84:23-85:8); and even if he could be considered a tenant, he received his process in
Housing Court when he was evicted (Ex. K at 73:23-77:22). Thus, he cannot recover damages for
a wrongful eviction.
Moreover, even if plaintiff stated a viable claim for wrongful eviction, he has failed to
assert a viable claim against Ms. Hernandez. As set forth above, plaintiff has failed to set forth
any basis to hold Ms. Hernandez personally liable.
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CONCLUSION
For the reasons set forth herein, defendant Linda Hernandez submits that her motion for
summary judgment should be granted in its entirety and the plaintiffs’ complaint should be
dismissed against her, together with any and all crossclaims submitted by co-defendants.
WHEREFORE, for all of the foregoing reasons, Linda Hernandez respectfully submits that
the Court grant its motion for summary judgment in its entirety, and award her such other relief as
the Court may deem just, equitable and proper.
Dated: Carle Place, New York
February 4, 2022
SOKOLOFF STERN LLP
Attorneys for Defendant Linda Hernandez
________________________
KIERA J. MEEHAN
179 Westbury Avenue
Carle Place, NY 11514
(516) 334-4500
File No. 140152
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RULE 202.8-b CERTIFICATION
This Memorandum of Law in support of Linda Hernandez’s motion for summary judgment
comprises 968 words, exclusive of the caption and signature block, and complies with the word
count limit.
Dated: Carle Place, New York
February 4, 2022
SOKOLOFF STERN LLP
_________________________
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Preview
FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------X JACQUES PENA-SYLVAIN, Plaintiff, Index No. 304366/2014E -against- 2015 UNIVERSITY PROPERTIES CORP., GLADYS NUNEZ, JUAN PERALTA, LINDA HERNANDEZ, AND RUBEN GARCIA, Defendants. -----------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT LINDA HERNANDEZ’S MOTION FOR SUMMARY JUDGMENT SOKOLOFF STERN LLP Attorneys for Defendant Linda Hernandez 179 Westbury Avenue Carle Place, New York 11514 (516) 334-4500 File No. 140152 Of Counsel: Kiera J. Meehan 1 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 PRELIMINARY STATEMENT This memorandum of law is respectfully submitted on behalf of defendant Linda Hernandez in support of her motion pursuant to CPLR §3212 for summary judgment, dismissing the plaintiffs’ complaint because Ms. Hernandez cannot be found liable under any of plaintiff’s alleged causes of action. Plaintiff, Jacques Sylvain Pena commenced this action asserting negligence, negligent hiring, assault and battery, and wrongful eviction, all in connection with personal injuries he claims to have sustained when he was allegedly assaulted by co-defendants Gladys Nunez, Juan Peralta, and Reuben Garcia, on Mach 20, 2014. At the time of the alleged assault plaintiff was illegally subletting a room in the apartment of an apartment leased to Gladys Nunez. As set forth below, and in the accompanying affirmation of Kiera J. Meehan, and statement of undisputed facts, all claims against Ms. Hernandez must be dismissed as she never met the plaintiff. As plaintiff admits Ms. Hernandez had no role whatsoever in the alleged assault and battery. Moreover, Ms. Hernandez, who is an employee of Langsam Properties, a property management company, owed no duty to plaintiff Finally, plaintiff was not a tenant as he illegally sublet an apartment from another leaseholder so he has no claim for wrongful eviction. Accordingly, Ms. Hernandez is entitled to summary judgment. STATEMENT OF FACTS The facts of this matter have been set forth in the accompanying affirmation of Kiera J. Meehan, dated February 4, 2022, and Statement of Undisputed Facts pursuant to Rule 202.8-g. For the sake of brevity, they will not be repeated herein. 1 2 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 ARGUMENT POINT I PLAINTIFF NEVER MET MS. HERNANDEZ SO HE HAS NO ASSAULT OR BATTERY CLAIM AGAINST HER To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact. Kuznitz v. Funk, 187 A.D.3d 1006, 1006 (2d Dep’t 2020) (quoting Bastein v. Sotto, 299 A.D.2d 432, 433 (2d Dep’t 2002). To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the plaintiff's consent. Kuznitz, 187 A.D.3d at 1006 (quoting Basetein 299 A.D.2d at 433). Plaintiff has never met Ms. Hernandez, much less had any physical contact with her. (See Ex. L at 31:22-36:13; see also Ex. I at 188:4-13; see also Ex. K at 87:15-89:22). As plaintiff admits Ms. Hernandez played no party in the alleged assault and battery, these claims against her must be dismissed. 2 3 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 POINT II PLAINTIFF HAS NO NEGLIGENCE CLAIM AGAINST MS. HERNANDEZ Plaintiff cannot maintain a negligence claim against Linda Hernandez because Hernandez owed plaintiff no duty to Pena, a man she has never met. Ms. Hernandez does not own the premises where the accident occurred. Nor did she employ any of the individuals allegedly involved in the assault. Rather, she is merely an employee of a property management company, Langsam Properties Inc. (“Langsam”). Plaintiff does not even allege that Hernandez took party in the assault or engaged in any conduct outside the scope of her employment. Notably, Langsam is not even a defendant in this litigation. Accordingly, there is no basis to hold Ms. Hernandez personally liable as it is undisputed that Ms. Hernandez did not own the premises where the incident occurred and there is no evidence that she acted outside the scope of her role as a property manager for Langsam, or that she independently engaged in tortious conduct. Diaz-Pascall v Pereira, 191 AD3d 594 [1st Dept 2021]; Mendez v City of New York, 259 AD2d 441, 442 [1st Dept 1999] POINT III PLAINTIFF WAS NOT A TENANT SO HE HAS NO WRONGFUL EVICTION CLAIM Plaintiff alleges that he was wrongfully evicted from Ms. Nunez’s apartment several months after the incident. But he cannot recover damages for wrongful eviction, as he was never a lawful tenant of the apartment. The original lease at 2015 University Avenue did not permit subletting of the apartment. (See Ex. L at 31:22-33:14, 84:23-85:8; Ex. I at 53:3-54:23, 78:16-22). Sub tenancy is dependent upon the original lease and may be terminated upon reentry of the landlord for a condition broken. Precision Dynamics Corp. v. Retailers Representatives, Inc., 120 3 4 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 Misc.2d 180 (Civil Court, City of New York, New York County 1983). A non-tenant has no possessory interest in the property and may be ousted by landlord without legal process. P & A Bros. v. City of New York Dep't of Parks & Recreation, 184 A.D.2d 267, 268 (1st Dep’t 1992). Thus, plaintiff’s ousting from the apartment after Ms. Nunez’s eviction sometime around December 2014 or January 2015 was perfectly legal because he was not a tenant (See Ex. L at 31:22-33:14, 84:23-85:8); and even if he could be considered a tenant, he received his process in Housing Court when he was evicted (Ex. K at 73:23-77:22). Thus, he cannot recover damages for a wrongful eviction. Moreover, even if plaintiff stated a viable claim for wrongful eviction, he has failed to assert a viable claim against Ms. Hernandez. As set forth above, plaintiff has failed to set forth any basis to hold Ms. Hernandez personally liable. 4 5 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 CONCLUSION For the reasons set forth herein, defendant Linda Hernandez submits that her motion for summary judgment should be granted in its entirety and the plaintiffs’ complaint should be dismissed against her, together with any and all crossclaims submitted by co-defendants. WHEREFORE, for all of the foregoing reasons, Linda Hernandez respectfully submits that the Court grant its motion for summary judgment in its entirety, and award her such other relief as the Court may deem just, equitable and proper. Dated: Carle Place, New York February 4, 2022 SOKOLOFF STERN LLP Attorneys for Defendant Linda Hernandez ________________________ KIERA J. MEEHAN 179 Westbury Avenue Carle Place, NY 11514 (516) 334-4500 File No. 140152 5 6 of 7 FILED: BRONX COUNTY CLERK 02/05/2022 12:34 AM INDEX NO. 304366/2014E NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/07/2022 RULE 202.8-b CERTIFICATION This Memorandum of Law in support of Linda Hernandez’s motion for summary judgment comprises 968 words, exclusive of the caption and signature block, and complies with the word count limit. Dated: Carle Place, New York February 4, 2022 SOKOLOFF STERN LLP _________________________ 6 7 of 7