Preview
FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
-----------------------------------------------------------------x Index No. EF005114-2021
SUTTON HILL II LLC
Plaintiff,
REPLY AFFIRMATION
-against-
CAROLINE DUNLOP-RIPEN
Defendant File No. 774746
-______------_____________________________________________________Ç
KEVIN M. KNAB, an attorney at law duly authorized to practice law before the courts of
the State of New York, under penalty of perjury affirms and states as follows:
1. I am an associate with the firm of Smith Carroad Levy & Wan, attorneys for
Petitioner, and as such I am fully familiar with the facts and circumstances had herein.
2. I make this Affirmation in Reply to Defendant's opposition papers, and in further
support of the motion for summary judgment of Plaintiff in this action.
3. It is respectfully submitted that although your affiant is not a party to the action,
this reply is proper in that it sets forth arguments in law that the opposition that Defendant has
presented is insufficient to demonstrate an issue of fact with respect to the cause of action of
Plaintiff.
4. Initially, the opposition of Defendant has alleged that Defendant vacated the
apartment in question on November 28, 2019. It should be noted that this was the Thanksgiving
holiday that year, a date where most businesses are closed. It would not have been possible for
Plaintiff to have retaken possession and rented the premises by December 1, 2019, which was a
Sunday that year. Since no rental payment could have been earned due to the holdover of
Defendant, it is equitable to hold the Defendant responsible for the rental value that Plaintiff was
deprived of for the month of December 2019.
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FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
5. As per Exhibit D of the motion of Plaintiff, the warrant of eviction was delivered
on December 11, 2019. Plaintiff, having obtained judgment of Possession of the apartment on
November 14, 2019, did not actually obtain possession until the delivery of the Warrant of
Eviction on December 11, 2019. It was at that time that Plaintiff exercised possession and
control of the apartment, and effectuated the repairs to the premises.
6. Defendant disputed the repair charges, claiming that the charges were for repair
that was unnecessary, as the only damage suffered at the premises was "normal wear and tear".
Since this was a holdover situation, Defendant had no authority to elicit further wear and tear
damages after the end of the renewal lease. Defendant has offered nothing other than an opinion
that the premises was not damaged. Defendant has offered no evidence or testimony as to the
actual condition of the apartment when Plaintiff legally re-took possession in December of 2019.
7 Furthermore, Defendant objected to the legal fees assessed, as Defendant claimed
that the fees were from a landlord-tenant action in April of 2019. Notwithstanding the claim for
legal fees for that proceeding, the claim for legal fees in this action were the holdover
any
which resulted in a judgment of possession on November 14, 2019, the warrant of
proceeding
eviction on November 28, 2019, and the resulting delivery of the warrant, which established the
right of Plaintiff to take possession of the apartment.
8. The business records of Plaintiff presented in the motion papers demonstrate a
failure of Defendant to pay rental payments as set forth in the lease agreement. The eviction
documents exhibited in the motion demonstrate the necessity for legal proceedings to properly
obtain possession of the leased premises for Plaintiff. The damages caused by the failure to
make proper payments and for possession beyond the expiration of the lease term
holding
resulted in the damages currently sought by Plaintiff
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NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
WHEREFORE, your affiant respectfully requests that the motion of Plaintiff for summary
judgment be granted, and for this court to direct that a judgment be entered in favor of Plaintiff
and against Defendant for $4,308.44 with lawful interest from December 31, 2019, attorneys fees
in the sum of $861.69, together with costs and disbursements of this action, and for such other
and further relief as this Court may deem just and proper.
Dated: Commack, New York
August 26, 2022
Kevin M. Knab
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NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
CERTIFICATION PURSUANT TO 22 NYCRR §202.8-b
Pursuant to 22 NYCRR § 202.8-b, the undersigned, an attorney admitted to practice in
the courts of New York Sate, certifies that the annexed document complies with the word count
limit.
Word Count: 685
Kevin M. Knab, Esq.
Smith Carroad Levy Wan & Parikh, P.C.
Attorneys for Plaintiff
5036 Jericho Turnpike, Suite 201
Commack, NY 11725
(631) 499-5400
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NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK )
COUNTY OF SUFFOLK )ss:
Kimberly Sciacca, being sworn says: I am not a party to the action, am
over 18 years of age and reside at East Islip, New York.
On August 26, 2022, I served a true copy of the annexed Reply by mailing
the same in a sealed envelope, with postage prepaid thereon, in a post-office or official
depository of the U.S. Postal Service within the State of New York, addressed to the last known
address of the addressee(s) as indicated below:
TO: CAROLINE DUNLOP-RIPEN
5 Elm Street
Howells, NY 10932
Kimbely Sciacca
Sworn to before me this
26th
da of August, 2 2
Notary Public
KEVIN M. KNAB
Notary Public, State of New York
No. 2KN4991773
QUALIFIED IN SUFFOLK COUNTY
Commission Expires February 10, 2026
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NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022
Index No. EF005114-2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
SUTTON HILL II LLC
Plaintiff,
-against-
CAROLINE DUNLOP-RIPEN
Defe ndant.
AFFIRMATION IN REPLY
Smith Carroad Levy Wan & Parikh, P.C.
Attorneys for Plaintiff
Of ce and Post Office Address
5036 JERICHO TURNPIKE
COMMACK, NEW YORK 11725
(631) 499-5400
To
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated,
Attorney(s) for ....................................
Dated,
Yours, etc.
Smith Carroad Levy Wan & Parikh, P.C.
Attomeys for Plaintiff
Office and Post Office Address
5036 JERICHO TURNPIKE
COMMACK, NEW YORK 11725
(631) 499-5400
To
Attorney(s) for
6 of 6
Preview
FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -----------------------------------------------------------------x Index No. EF005114-2021 SUTTON HILL II LLC Plaintiff, REPLY AFFIRMATION -against- CAROLINE DUNLOP-RIPEN Defendant File No. 774746 -______------_____________________________________________________Ç KEVIN M. KNAB, an attorney at law duly authorized to practice law before the courts of the State of New York, under penalty of perjury affirms and states as follows: 1. I am an associate with the firm of Smith Carroad Levy & Wan, attorneys for Petitioner, and as such I am fully familiar with the facts and circumstances had herein. 2. I make this Affirmation in Reply to Defendant's opposition papers, and in further support of the motion for summary judgment of Plaintiff in this action. 3. It is respectfully submitted that although your affiant is not a party to the action, this reply is proper in that it sets forth arguments in law that the opposition that Defendant has presented is insufficient to demonstrate an issue of fact with respect to the cause of action of Plaintiff. 4. Initially, the opposition of Defendant has alleged that Defendant vacated the apartment in question on November 28, 2019. It should be noted that this was the Thanksgiving holiday that year, a date where most businesses are closed. It would not have been possible for Plaintiff to have retaken possession and rented the premises by December 1, 2019, which was a Sunday that year. Since no rental payment could have been earned due to the holdover of Defendant, it is equitable to hold the Defendant responsible for the rental value that Plaintiff was deprived of for the month of December 2019. 1 of 6 FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 5. As per Exhibit D of the motion of Plaintiff, the warrant of eviction was delivered on December 11, 2019. Plaintiff, having obtained judgment of Possession of the apartment on November 14, 2019, did not actually obtain possession until the delivery of the Warrant of Eviction on December 11, 2019. It was at that time that Plaintiff exercised possession and control of the apartment, and effectuated the repairs to the premises. 6. Defendant disputed the repair charges, claiming that the charges were for repair that was unnecessary, as the only damage suffered at the premises was "normal wear and tear". Since this was a holdover situation, Defendant had no authority to elicit further wear and tear damages after the end of the renewal lease. Defendant has offered nothing other than an opinion that the premises was not damaged. Defendant has offered no evidence or testimony as to the actual condition of the apartment when Plaintiff legally re-took possession in December of 2019. 7 Furthermore, Defendant objected to the legal fees assessed, as Defendant claimed that the fees were from a landlord-tenant action in April of 2019. Notwithstanding the claim for legal fees for that proceeding, the claim for legal fees in this action were the holdover any which resulted in a judgment of possession on November 14, 2019, the warrant of proceeding eviction on November 28, 2019, and the resulting delivery of the warrant, which established the right of Plaintiff to take possession of the apartment. 8. The business records of Plaintiff presented in the motion papers demonstrate a failure of Defendant to pay rental payments as set forth in the lease agreement. The eviction documents exhibited in the motion demonstrate the necessity for legal proceedings to properly obtain possession of the leased premises for Plaintiff. The damages caused by the failure to make proper payments and for possession beyond the expiration of the lease term holding resulted in the damages currently sought by Plaintiff 2 of 6 FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 WHEREFORE, your affiant respectfully requests that the motion of Plaintiff for summary judgment be granted, and for this court to direct that a judgment be entered in favor of Plaintiff and against Defendant for $4,308.44 with lawful interest from December 31, 2019, attorneys fees in the sum of $861.69, together with costs and disbursements of this action, and for such other and further relief as this Court may deem just and proper. Dated: Commack, New York August 26, 2022 Kevin M. Knab 3 of 6 FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 CERTIFICATION PURSUANT TO 22 NYCRR §202.8-b Pursuant to 22 NYCRR § 202.8-b, the undersigned, an attorney admitted to practice in the courts of New York Sate, certifies that the annexed document complies with the word count limit. Word Count: 685 Kevin M. Knab, Esq. Smith Carroad Levy Wan & Parikh, P.C. Attorneys for Plaintiff 5036 Jericho Turnpike, Suite 201 Commack, NY 11725 (631) 499-5400 4 of 6 FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) COUNTY OF SUFFOLK )ss: Kimberly Sciacca, being sworn says: I am not a party to the action, am over 18 years of age and reside at East Islip, New York. On August 26, 2022, I served a true copy of the annexed Reply by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee(s) as indicated below: TO: CAROLINE DUNLOP-RIPEN 5 Elm Street Howells, NY 10932 Kimbely Sciacca Sworn to before me this 26th da of August, 2 2 Notary Public KEVIN M. KNAB Notary Public, State of New York No. 2KN4991773 QUALIFIED IN SUFFOLK COUNTY Commission Expires February 10, 2026 5 of 6 FILED: ORANGE COUNTY CLERK 08/26/2022 02:52 PM INDEX NO. EF005114-2021 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 08/26/2022 Index No. EF005114-2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE SUTTON HILL II LLC Plaintiff, -against- CAROLINE DUNLOP-RIPEN Defe ndant. AFFIRMATION IN REPLY Smith Carroad Levy Wan & Parikh, P.C. Attorneys for Plaintiff Of ce and Post Office Address 5036 JERICHO TURNPIKE COMMACK, NEW YORK 11725 (631) 499-5400 To Attorney(s) for Service of a copy of the within is hereby admitted. Dated, Attorney(s) for .................................... Dated, Yours, etc. Smith Carroad Levy Wan & Parikh, P.C. Attomeys for Plaintiff Office and Post Office Address 5036 JERICHO TURNPIKE COMMACK, NEW YORK 11725 (631) 499-5400 To Attorney(s) for 6 of 6