Preview
FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017
To commence the statutory
time for appeals as of right
(CPLR 5513[a]),you are
advised to serve a copy
of entry, upon allparties .
.SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-----------------------------~-------------------------------------------)(
CDC DEVELOPMENT PROPERTIES, INC.,
INDEX NO. 51573/2015
Plaintiff, DECISION/ORDER
Motion Date: 8/2/17 1
-against- Motion Seqs. 4, 5
AMERICAN INDEPENDENT PAPER MILLS SUPPLY
COMPANY, INC. and HUDSON HARBOR HOMES,
INC.,
EcKER~j~----------------------?-~fendants. ---------~-------------)(
The following papers numbered 1 through 58 were read on the motion of CDC
Development Properties, Inc. ("plaintiff'), pursuant to CPLR 3212, for an order granting
summary judgment upon the complaint, and the cross-motion of American Independent
Paper Mills Supply Company, Inc. ("defendant" or "AIC"), pursuant to CPLR 3212, for an
order granting summary judgment dismissing the complaint, and for summary judgment
as to itscounterclaims:
PAPERS NUMBERED
Notice of Motion, Affirmation, Affidavits (2), 1 - 21
Exhibits A-Q 2
Notice of Cross-Motion, Affirmation, Affidavits (2), 21 - 40
1 The motions were originally returnable before another Justice ofthis court on May
19,2017 and reassigned to this court on or about July 24,2017 with a new submission
date of August 2, 2017.
2 Plaintiff has been previously advised that its exhibits are to be numbered, and not
identified by letter.
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FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017
Exhibits A- a 3
Affirmation and Affidavit in Opposition/Support, 41 - 44
Exhibits R-S
Reply Affirmation, Reply Affidavits (2), Exhibits A-K 45 - 58
The following papers filed after the submission date and without the court's permission
were not considered:
Defendant's Supplemental Attorney Reply Affirmation, dated August 30,2017
Plaintiff's Affirmation and Affidavit in Support, dated September 5, 2017
Defendant's Further Supplemental Attorney Reply Affirmation, dated September 8,2017
This is a commercial landlord/tenant dispute arising out of a written lease agreement
('the Lease", Deft. First Ex. D], dated November, 2006, between plaintiff as tenant and
defendant as landlord. The subject premises are located in Tarrytown (Westchester), New
York, and are being occupied as a sports center. The lease term is for ten (10) years,
running from December 1,2006 through November 30,2016.
Plaintiff alleges defendant is liable to it for refunds received by defendant for real
property tax abatements and real property tax reductions that were due and payable
pursuant to the lease agreement. Plaintiff also claims defendant owes it for certain roof
repairs made by plaintiff that were not reimbursed by defendant. Defendant denies liability
for these items and seeks monetary damages against plaintiff on its counterclaim for
breaches of the lease and tortious interference with contract.
Summary judgment is a drastic remedy that deprives a litigant of his or her day in
court, and it should be granted only where the moving party "has tender[ed] sufficient
evidence to demonstrate the absence of any material issues of fact" Alvarez v Prospect
Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]. To grant
summary judgment, it must clearly appear that no material and triable issue of fact is
presented. Issue finding, rather than issue determination, is the key to the procedure.
Matter of Suffolk Co. Dept. of Social Services v James M., 83 NY2d 178 [1994]; Sillman
v Twentieth Century-Fox Film Corp, 3 NY2d 395,404 [1957]. In making this determination,
the court must view the evidence in the light most favorable to the party opposing the
motion, and must give that party the benefit of every inference which can be drawn from
the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470,
475 [2013]; Nash v Port Washington Union Free School District, 83 AD3d 136, 146 [2d
Dept 2011]; Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]. Every available
inference must be drawn in the [non-moving) party's favor. De Lourdes Torres v Jones, 26
NY3d 742, 763 [2016].
3 Court rules require use of external exhibit tabs. The court does not have time to
go through a party's voluminous submissions to locate a particular exhibit.
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FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017
On a motion for summary judgment, the court's function is to determine if a factual
issue exists, and 'the court must not weigh the credibility of witnesses unless it clearly
appears that the issues are feigned and not genuine, and [a]n conflict in the testimony or
evidence presented merely raise(s) an issue of fact.' [internal citations omitted]. Brown v
Kass, 91 AD3d 894 [2d Dept 2012]. Nor maya court engage in the weighing of evidence.
Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]. "Resolving questions of
credibility, determining the accuracy of witnesses, and reconciling the testimony of
witnesses are for the trier of fact. Bykov v Brody, 150 AD3d 808 [2d Dept 2017]; Kahan v
Spira, 88 AD3d 964 [2d Dept 2011]. Thus a motion for summary judgment "should not be
granted where the facts are in dispute, where conflicting inferences may be drawn from the
evidence, or where there are issues of credibility" Ruiz v Griffin, 71 AD3d 1112, 1115 [2d
Dept 2010].
Applying these legal principles and standard of review, each party has submitted
documentary evidence and defendant, the affidavit of Bart Lansky, a licensed attorney in
New York whose expertise extends to the field of commercial leases and real estate
taxation matters. It is his position that plaintiff is not entitled to a refund for any taxes. He
prepared a schedule which he alleges demonstrates that plaintiff is owed in total
$7,782.99. Further, due to the lack of specificity in defendant's Notice of Cross-Motion,
and predicated upon the above legal principles and the rulings of this court in its decision
as to earlier motions, neither party has demonstrated its entitlement to summary judgment.
Lastly, there are issues of fact already identified by the court as to the legal significance
of defendant's affirmative defenses, and plaintiff's demand for monetary damages relative
to the alleged leaky roof. In short, there are multiple triable issues of fact in this case
requiring a trial.
The court has considered the additional contentions of the parties not specifically
addressed herein. To the extent any relief requested by either party was not addressed by
the court, it ishereby denied. Accordingly, it is hereby
ORDERED that the motion of plaintiff CDC Development Properties, Inc.[Mot. Seq.
4], made pursuant to CPLR 3212, for summary judgment on the complaint, is denied; and
it is further
ORDERED that the motion of defendant American Independent Paper Mills Supply
Company, Inc.[Mot. Seq. 5], made pursuant to CPLR 3212, for summary judgment
dismissing the complaint, and upon its counterclaim, is denied; and it is further
ORDERED that the parties shall appear at the Settlement Conference Part of the
Court, Room 1600, on October 24,2017, at 9:15 a.m.
The foregoing constitutes the Decision/Order of the court.
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FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017
Dated: White Plains, New York
SePtember~, 2017
HON. LAWRENCE H. ECKER, J.S.C.
Appearances
Gallo Vitucci Klar, LLP
Attorneys for Plaintiff
Via NYSCEF
Mark E. Constantine, Esq.
Attorney for Defendant
Via NYSCEF
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Preview
FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017 To commence the statutory time for appeals as of right (CPLR 5513[a]),you are advised to serve a copy of entry, upon allparties . .SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -----------------------------~-------------------------------------------)( CDC DEVELOPMENT PROPERTIES, INC., INDEX NO. 51573/2015 Plaintiff, DECISION/ORDER Motion Date: 8/2/17 1 -against- Motion Seqs. 4, 5 AMERICAN INDEPENDENT PAPER MILLS SUPPLY COMPANY, INC. and HUDSON HARBOR HOMES, INC., EcKER~j~----------------------?-~fendants. ---------~-------------)( The following papers numbered 1 through 58 were read on the motion of CDC Development Properties, Inc. ("plaintiff'), pursuant to CPLR 3212, for an order granting summary judgment upon the complaint, and the cross-motion of American Independent Paper Mills Supply Company, Inc. ("defendant" or "AIC"), pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint, and for summary judgment as to itscounterclaims: PAPERS NUMBERED Notice of Motion, Affirmation, Affidavits (2), 1 - 21 Exhibits A-Q 2 Notice of Cross-Motion, Affirmation, Affidavits (2), 21 - 40 1 The motions were originally returnable before another Justice ofthis court on May 19,2017 and reassigned to this court on or about July 24,2017 with a new submission date of August 2, 2017. 2 Plaintiff has been previously advised that its exhibits are to be numbered, and not identified by letter. -1- 1 of 4 FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017 Exhibits A- a 3 Affirmation and Affidavit in Opposition/Support, 41 - 44 Exhibits R-S Reply Affirmation, Reply Affidavits (2), Exhibits A-K 45 - 58 The following papers filed after the submission date and without the court's permission were not considered: Defendant's Supplemental Attorney Reply Affirmation, dated August 30,2017 Plaintiff's Affirmation and Affidavit in Support, dated September 5, 2017 Defendant's Further Supplemental Attorney Reply Affirmation, dated September 8,2017 This is a commercial landlord/tenant dispute arising out of a written lease agreement ('the Lease", Deft. First Ex. D], dated November, 2006, between plaintiff as tenant and defendant as landlord. The subject premises are located in Tarrytown (Westchester), New York, and are being occupied as a sports center. The lease term is for ten (10) years, running from December 1,2006 through November 30,2016. Plaintiff alleges defendant is liable to it for refunds received by defendant for real property tax abatements and real property tax reductions that were due and payable pursuant to the lease agreement. Plaintiff also claims defendant owes it for certain roof repairs made by plaintiff that were not reimbursed by defendant. Defendant denies liability for these items and seeks monetary damages against plaintiff on its counterclaim for breaches of the lease and tortious interference with contract. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should be granted only where the moving party "has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact" Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Issue finding, rather than issue determination, is the key to the procedure. Matter of Suffolk Co. Dept. of Social Services v James M., 83 NY2d 178 [1994]; Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395,404 [1957]. In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference which can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; Nash v Port Washington Union Free School District, 83 AD3d 136, 146 [2d Dept 2011]; Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept 2009]. Every available inference must be drawn in the [non-moving) party's favor. De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]. 3 Court rules require use of external exhibit tabs. The court does not have time to go through a party's voluminous submissions to locate a particular exhibit. -2- 2 of 4 FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017 On a motion for summary judgment, the court's function is to determine if a factual issue exists, and 'the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine, and [a]n conflict in the testimony or evidence presented merely raise(s) an issue of fact.' [internal citations omitted]. Brown v Kass, 91 AD3d 894 [2d Dept 2012]. Nor maya court engage in the weighing of evidence. Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]. "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact. Bykov v Brody, 150 AD3d 808 [2d Dept 2017]; Kahan v Spira, 88 AD3d 964 [2d Dept 2011]. Thus a motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]. Applying these legal principles and standard of review, each party has submitted documentary evidence and defendant, the affidavit of Bart Lansky, a licensed attorney in New York whose expertise extends to the field of commercial leases and real estate taxation matters. It is his position that plaintiff is not entitled to a refund for any taxes. He prepared a schedule which he alleges demonstrates that plaintiff is owed in total $7,782.99. Further, due to the lack of specificity in defendant's Notice of Cross-Motion, and predicated upon the above legal principles and the rulings of this court in its decision as to earlier motions, neither party has demonstrated its entitlement to summary judgment. Lastly, there are issues of fact already identified by the court as to the legal significance of defendant's affirmative defenses, and plaintiff's demand for monetary damages relative to the alleged leaky roof. In short, there are multiple triable issues of fact in this case requiring a trial. The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it ishereby denied. Accordingly, it is hereby ORDERED that the motion of plaintiff CDC Development Properties, Inc.[Mot. Seq. 4], made pursuant to CPLR 3212, for summary judgment on the complaint, is denied; and it is further ORDERED that the motion of defendant American Independent Paper Mills Supply Company, Inc.[Mot. Seq. 5], made pursuant to CPLR 3212, for summary judgment dismissing the complaint, and upon its counterclaim, is denied; and it is further ORDERED that the parties shall appear at the Settlement Conference Part of the Court, Room 1600, on October 24,2017, at 9:15 a.m. The foregoing constitutes the Decision/Order of the court. -3- 3 of 4 FILED: WESTCHESTER COUNTY CLERK 10/03/2017 03:55 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 10/03/2017 Dated: White Plains, New York SePtember~, 2017 HON. LAWRENCE H. ECKER, J.S.C. Appearances Gallo Vitucci Klar, LLP Attorneys for Plaintiff Via NYSCEF Mark E. Constantine, Esq. Attorney for Defendant Via NYSCEF -4- 4 of 4