Motion-Secondary: W 108 Development Llc v. Nour Foundation

On May 30, 2019 a Motion-Secondary was filed involving a dispute between W 108 Development Llc, and Nour Foundation, for Real Property - Other (RPAPL 881) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 05/30/2020 06:35 PM INDEX NO. 155443/2019
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 05/30/2020

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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W 108 DEVELOPMENT LLC, : Index No.: 155443/2019
Petitioner, :
: Assigned Justice:
-against- : Hon. W. Franc Perry
:
: Motion Sequence No. 004
NOUR FOUNDATION, :
: Return Date: June 5, 2020
Respondent. :
:
:
:
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PETITIONER W 108 DEVELOPMENT LLC’S MEMORANDUM OF LAW
IN OPPOSITION TO
RESPONDENT NOUR FOUNDATION’S MOTION FOR LEAVE TO REARGUE

ZUMPANO PATRICIOS & POPOK, PLLC
Michael S. Popok, Esq.
Hamutal G. Lieberman, Esq.
417 Fifth Avenue, Suite 826
New York, New York 10016

and,

LONDON FISCHER, LLP
Cory A. Simmons, Esq.
59 Maiden Lane
New York, NY 10038

Attorneys for Petitioner
W 108 Development, LLC

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TABLE OF CONTENTS

Page(s)
PRELIMINARY STATEMENT……………….……………………….………………………....1

RELEVANT FACTS AND PROCEDURAL HISTORY………………………….……………...2

ARGUMENT……………………………………………………………………………………...4

I. NOUR SHOULD BE DENIED LEAVE TO REARGUE BECAUSE IT DOES
NOT MEET THE CPLR § 2221(d) STANDARD…………………….……………….4

A. The Court Did Not Overlook Or Misapprehend Any Matters Of Fact………………........5

1. The Court Considered And Dismissed The Parties’
Settlement Negotiations And Proposed License Agreement………………………….5

2. The Court Considered And Addressed Nour’s Allegations
Concerning Property Damage…………………………………………………...…….6

B. The Court Did Not Overlook Or Misapprehend Any Matters Of Law………….………...6

II. THE COURT’S GRANTING OF THE LICENSE WAS A PROPER EXERCISE OF
JUDICIAL DISCRETION AND SHOULD NOT BE DISTURBED ON
REARGUMENT……………………………………………………………………....8

CONCLUSION…………………………………….………...…………………………………....9

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TABLE OF AUTHORITIES

Cases Pages(s)

10 E. End Ave. Owners, Inc. v. Two E. End Ave. Apartment Corp.,
NY Slip Op 50712(U) (Sup. Ct. New York Co. 2012)……………………………………….…6, 7

Foley v. Roche,
68 AD.2d 558, 567 (1st Dept. 1979)….………………………...……………………...………….4

Matter of 2225 46th St., LLC v. Hahralampopoulos,
55 Misc.3d 621, 623 (Sup. Ct. Queens Co. 2017)………………………….……………...……5, 6

Mindel v. Phoenix Owners Corp.,
210 A.D.2d 167, 167 (1st Dept. 1994)…………………………………….……...….…….…...5, 8

Pro Brokerage, Inc v. Home Ins. Co.,
99 A.D.2d 971 (1st Dept 1984)……………………………………………………………….…....6

Simpson v. Loehmann,
21 N.Y.2d 990, 990 (1968)………………………………………………………………...…........4

William P. Pahl Equip. Corp. v. Kassis,
182 A.D.2d 22, 27 (1st Dept. 1992)…………………………………………….………………4, 6

Statutes

CPLR § 407 …………………….…………………...………...………….…………………….....3

CPLR § 408…………………….……………...………………....................….…...….…….........6

CPLR § 2214…………………….……………...…………………………………….………...2, 4

CPLR § 2221………………………………………………...……………...………….…..1, 4, 5, 9

RPAPL § 881………………………………….……………………………….…......1, 2, 3, 5, 7, 8

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Petitioner W 108 Development LLC (“W 108”) respectfully submits this Memorandum of

Law in opposition to Respondent Nour Foundation (“Nour”)’s motion under CPLR § 2221 for

leave to reargue that portion of the Order and Decision issued by the Honorable W. Franc Perry,

dated and entered on May 6, 2020 (the “Decision”), concerning the terms under which the license

to access Nour’s premises was granted to W 108 to permit it to finish its construction project in

light of the imminent reopening of Manhattan’s construction projects.

PRELIMINARY STATEMENT

There is no basis upon which leave to reargue should be granted and the Court should not

hesitate to deny Nour’s motion. Nour’s motion should be denied for three (3) reasons. First, the

Court has not overlooked or misapprehended any matters of fact or law as asserted by Nour, and

on this ground alone the motion fails to meet the threshold established by CPLR § 2221(d) and

must be denied. The issues were fully briefed, and the Court having reviewed the record and

having heard argument from counsel, issued a five-page detailed order providing its reasoning,

grounds and decision. See NYSCEF Doc. No. 88. In the Decision, the Court denied W 108’s

motion to enforce a settlement, and further denied its motion to sever Nour’s property damage

counterclaim. But as to the license, the Court granted the license allowing W 108 access to install

roof protection as required by the Department of Buildings on Nour’s property needed to progress

its residential construction project without further delay. That Nour does not like the Decision or

believes that it should have gone a different way and included its preferred terms concerning the

granted license, is not a proper ground for reargument.

Second, in granting an application for access pursuant to RPAPL § 881, the Court is vested

with discretion to determine the terms under which the license will be exercised, and its Decision

should not be disturbed. RPAPL § 881 states that a license for access “shall be granted by the

court in an appropriate case upon the terms as justice requires” (Emphasis added). Here, the

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Court’s grant of a license for access pursuant to RPAPL § 881 is well within the discretion afforded

by the statute and takes into consideration the specific facts and procedural history of this case, of

which the Court is well acquainted. Nour “reargues” that the Decision should be reconsidered

because the Court did not add additional terms to the license pursuant to the “upon the terms as

justice requires” language set forth in RPAPL § 881, affecting how the license will be executed by

the parties. W 108 finds no such infirmity in the Decision as to the license and is prepared to do

all that is feasible to avoid injuries resulting from its entry onto the Nour Premises, to wit: the

installation of roof protection pursuant to applicable building code and the procurement of

appropriate general liability insurance policy naming Nour as an additional insured for the duration

of the license. Lastly, Nour’s motion is procedurally defective under CPLR § 2214, providing an

additional basis for its denial.

Based on the current PAUSE Executive Order progress indicators, it is expected that the

Phase I reopening of New York City allowing for construction projects such as W 108’s to restart

is imminent, possibly within the next week. At that time, W 108 intends to exercise its rights under

the Court-granted license and move forward expeditiously with construction.

RELEVANT FACTS AND PROCEDURAL HISTORY

On May 30, 2019, W 108 commenced this special proceeding pursuant to RPAPL § 881

seeking a license to access the roof of the premises located at 322 West 108th Street, New York,

New York owned by Nour (the “Nour Premises”) to install, maintain and remove roof protection

on its roof to complete the exterior finish of W 108’s construction project (“Motion 001”). See

NYSCEF Doc. No. 1. As the Court acknowledged, the license is necessary to both allow W 108

to build and finish its residential project, and to protect the Nour Premises during the course of W

108’s construction. In its petition and supporting memorandum of law, W 108 voluntarily agreed

to obtain and maintain insurance covering any damage that may be caused by its access, including

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naming Nour as an additional insured on the policy, and as part of the record, provided the Court

its roof protection drawings along with an affidavit from its architect certifying the roof protection

plans were in compliance with the applicable building code. See NYSCEF Doc. Nos. 1-7. In

response, on July 7, 2019 Nour filed its opposition to W 108’s petition. See NYSCEF Doc. Nos.

14-45. As noted in its own opposition, “Nour did not oppose W 108’s request for a license per se,

but maintained that any license agreement entered reflect terms negotiated by the parties and

sought reimbursement for Nour’s legal and engineering fees, and repair of property damage”

allegedly created by W 108’s prior construction activities (Emphasis added). See Affirmation of

Brian G. Lustbader, Esq. (“Lustbader Aff.”), ¶ 4. Nour also filed a counterclaim seeking recovery

for the alleged property damage to which W 108 responded. See NYSCEF Doc. Nos. 13 and 47.

On July 25, 2019, W 108 filed a motion that sought, inter alia, an order severing Nour’s

counterclaim for property damage and converting it into to a plenary action pursuant to

CPLR § 407 (“Motion 002”). See NYSCEF Doc. Nos. 48-52. As conceded by Nour, “Nour did

not oppose that motion . . . .” (Emphasis added). Lustbader Aff., ¶ 11.

Following oral argument, the Honorable Court issued the omnibus Decision addressing

Motions 001, 002 and 003 on May 6, 2020: (i) granting W 108’s petition (Motion 001) and

awarding W 108 a license pursuant to RPAPL § 881; (ii) granting W 108’s Motion 002; and (iii)

denying Motion 003 to enforce a settlement between the parties based on finding that the “facts

establish that no final agreement had been reached.” NYSCEF Doc. No. 88. Nour’s motion

seeking to reargue that portion of the Decision regarding the terms upon which the license to W

108 was granted ensued.

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ARGUMENT 1

I. NOUR SHOULD BE DENIED LEAVE TO REARGUE BECAUSE IT DOES
NOT MEET THE CPLR § 2221(d) STANDARD

There is no basis upon which leave to reargue should be granted. Nour’s arguments that

the Court overlooked or misapprehended the parties’ settlement negotiations, the proposed license

agreement, Nour’s property damage counterclaim and case law relating to the imposition of legal,

engineering and licensing fees simply do not meet the standard for a motion to reargue as set forth

in CPLR § 2221(d). See Foley v. Roche, 68 AD.2d 558, 567 (1st Dept. 1979). “Reargument is

not designed to afford the unsuccessful party successive opportunities to reargue issues previously

decided or to present arguments different from those originally asserted.” See William P. Pahl

Equip. Corp. v. Kassis, 182 A.D.2d 22, 27 (1st Dept. 1992). Thus, the motion is not to be used as

a vehicle for rehashing what was already argued or for raising new questions. See Simpson v.

Loehmann, 21 N.Y.2d 990, 990 (1968). Instead, a motion for leave to reargue shall “be based

1
Nour’s motion for leave to reargue should also be dismissed because it is procedurally defective. It does not
attach, cite or reference the papers submitted in connection with the underlying motions on which the Decision was
decided and must be dismissed for this reason alone. While CPLR § 2214(c) does not necessarily require a party to
an e-filed proceeding to attach copies of the papers that were previously filed with the court, it does require the party
to make reference to such papers “giving the docket numbers on the e-filing system.” CPLR § 2214(c). Nour has
neither attached the prior papers, nor referenced them by their docket number as required by CPLR § 2214(c). See
Lustbader Aff., ¶¶ 2, 3, 4, 5, 9, 11, 12, 13, 14, 15, 16, 20, 21.
Nour instead picks and chooses from the record, and
references four (4) self-serving documents from the record and attaches one -- the Decision -- in its moving papers.
See Lustbader Aff., ¶¶ 5-9, 16, 18, fn 1; see also NYSCEF Doc. Nos. 19, 25, 30 and 67. These documents are
piecemeal portions of the lengthy and complicated record spanning a year of litigation between the parties which is
made up of ninety-five (95) documents in total (excluding this opposition). Nour even fails to attach or cite to its own
documents from the record despite referring to and relying on these documents throughout its motion. See Lustbader
Aff., ¶¶ 4, 5, 12, 16, 21. Nour’s moving papers even cite to a case in which the First Department stressed the
importance of the movant attaching the moving papers when reviewing an order and “confronted with a confusing
record.” Parker v. 151 East 83rd Street Tenants Corp., 171 A.D.2d 599, 600 (1st Dept. 1991).

Pursuant to CPLR § 2214(c), a court may refuse to consider improperly submitted papers. See Loeb v.
Tanenbaum, 124 A.D.2d 941, 942 (3d Dept. 1986))(“There is no authority for compelling [the court] to consider
papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214 (c),
the court may refuse to consider improperly submitted papers);” see also Mayor Gallery Ltd. v. Agnes Martin
Catalogue Raisonne, LLC, NY Slip Op 32161(U) (Sup. Ct. New York Co. 2018). Finally, the defect in Nour’s papers
cannot be corrected on reply by submitting the missing documentation. See IndyMac Bank, FSB v. LaMattina, 49
A.D.3d 395, 395 (1st Dept. 2008).

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upon matters of fact or law allegedly overlooked or misapprehended by the court in determining

the prior motion but shall not include any matters of fact not offered on the prior motion.” CPLR

§ 2221(d)(2).

Nour’s assertions that the Court overlooked or misapprehended matters of fact or law

because the Decision “is silent as to the terms and conditions that should govern access” to the

license is baseless. Lustbader Aff., ¶ 20. What Nour really means is that it is disappointed that

the Court did not grant the license including the terms that it preferred. As even Nour concedes,

“the terms of the license are set in the discretion of the Court.” Matter of 2225 46th St., LLC v.

Hahralampopoulos, 55 Misc.3d 621, 623 (Sup. Ct. Queens Co. 2017); see also Mindel v. Phoenix

Owners Corp., 210 A.D.2d 167, 167 (1st Dept. 1994); Lustbader Aff., ¶20. “RPAPL 881

authorizes the court to grant the license on such terms as justice requires. This language is broad

and allows for the flexibility and full scope upon which equity depends.” Matter of 2225 46th St.,

LLC, 55 Misc.3d 621, 623 (Sup. Ct. Queens Co. 2017).

A. The Court Did Not Overlook Or Misapprehend Any Matters Of Fact

1. The Court Considered And Dismissed The Parties’ Settlement Negotiations
And Proposed License Agreement

The Court appropriately used its discretion to consider the facts surrounding the parties’

settlement negotiations, the terms in the proposed license agreement, and Nour’s allegations

concerning property damage. The Court’s Decision cites to and quotes from the parties’ motion

papers and exhibits, and after consideration of each argument advanced by the parties, exercised

its discretion and granted W 108 the requested license for roof access to the Nour Property. See

NYSCEF Doc. No. 88, p. 5. Based on the detailed Decision founded on the Court’s careful review

of the record which is demonstrated by direct quotations from the parties’ communications, it is

inconceivable for Nour to argue that the Court misapprehended or overlooked the facts to warrant

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the extraordinary remedy of reargument. That Nour now wants a second bite at the apple to try to

convince the Court with new argument or the resuscitation of old failed arguments, is of no

moment.

2. The Court Considered And Addressed Nour’s Allegations Concerning
Property Damage

A motion for leave to reargue is not an opportunity for a litigant to “reargue issues

previously addressed and decided.” William P. Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22, 27

(1st Dept. 1992); see also Pro Brokerage, Inc v. Home Ins. Co., 99 A.D.2d 971 (1st Dept. 1984).

Nour fails to accept that the Court considered and addressed its allegations relating to property

damage when it granted the license, by granting W 108’s Motion 002 to join FG-PH as a party to

Nour’s counterclaim for property damage, and permitted disclosure on the counterclaim pursuant

to CPLR § 408 going forward. Accordingly, Nour has failed to demonstrate that the Court

overlooked or misapprehended any facts relating to its allegations of property damage when

granting W 108 the license.

B. The Court Did Not Overlook or Misapprehend Any Matters of Law

Nour further contends that the Court overlooked and misapprehended case law requiring

W 108 to pay Nour its legal, engineering and license fees. However, the Court considered and

dismissed the case law presented with respect to such fees. Nour thoroughly briefed the Court on

the issue in its opposition to the petition. See NYSCEF Doc. Nos. 14-45. The Court used its

discretion to consider and dismiss Nour’s arguments that W 108 should reimburse Nour for its

legal and engineering fees. See Matter of 2225 46th St., LLC v. Hahralampopoulos, 55 Misc.3d

621, 624 (Sup. Ct. Queens Co. 2017) (in using its discretion, the Court finds that “this case does

not require that the petitioner pay the respondents’ reasonable [engineering] fees . . . [and] . . .the

payment of respondents’ legal fees shall not be required); see also 10 E. End Ave. Owners, Inc. v.

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Two E. End Ave. Apartment Corp., NY Slip Op 50712(U) (Sup. Ct. New York Co. 2012) (the

Court exercised its discretion to decline to award respondent legal and engineering fees).

Accordingly, Nour has failed to demonstrate that the Court overlooked or misapprehended

any case law with respect to the payment of legal and engineering fees when it granted W 108 a

license to the Nour Premises. Quite the opposite. It can only reasonably be concluded that the

Court considered the full record, and Nour’s legal arguments pertaining to legal and engineering

fees, and rejected them in granting the license.

Nour also argues that the Court overlooked and misapprehended case law requiring W 108

to pay Nour a monthly license fee. However, since awarding a license fee is within the discretion

of the Court, it is evident from the Court’s Decision that it considered and rejected Nour’s

argument when rendering its Decision. See 10 E. End Ave. Owners, Inc. v. Two E. End Ave.

Apartment Corp., NY Slip Op 50712(U) (Sup. Ct. New York Co. 2012) (declining to issue a

license to the licensor of the property). “[A]s to any payment of money to the licensor in exchange

for the right to enter respondent’s property, RPAPL § 881 merely requires that the licensee “be

liable. . . for actual damages [which occur] as a result of the entry.” 10 E. End Ave. Owners, Inc.

v. Two E. End Ave. Apartment Corp., NY Slip Op 50712(U) (Sup. Ct. New York Co. 2012)

(declining to issue a license fee to the licensor of the property). In 10 E. End Ave. Owners, Inc.,

the Court held that “[w]hile RPAPL [§ 881] provides that the court may issue a license ‘upon such

terms as justice requires,’ this court does not construe such provision to warrant the imposition of

a monetary license fee or award to the licensor, in exchange for access, given that, the statute

speaks to monetary damages separately later in the statute, and limits such damages to ‘actual

damage occurring as a result of the entry.’” Id. Nour has failed to demonstrate that the Court

overlooked or misapprehended any matters of law when denying a requirement as sought by Nour

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that W 108 pay a license fee when the Court rendered the Decision.

II. THE COURT’S GRANTING OF THE LICENSE WAS A PROPER EXERCISE
OF JUDICIAL DISCRETION AND SHOULD NOT BE DISTURBED ON
REARGUMENT

The Court’s granting of the license based on the record before it was a proper exercise of

judicial discretion under RPAPL § 881. See Mindel v. Phoenix Owners Corp., 210 A.D.2d 167,

167 (1st Dept. 1994) (finding that where a court adopts a standard of reasonableness in concluding

that a defendant is prepared to do all that is feasible to avoid injuries resulting from its entry upon

plaintiffs’ properties, a RPAPL § 881 license is properly granted). Nour improperly reargues that

the decision should be reconsidered because the Court did not add additional terms to the license

pursuant to the language set forth in RPAPL § 881, “upon the terms as justice requires” affecting

how the license will be executed by the parties. RPAPL § 881; see also Lustbader Aff., ¶ 21. W

108 finds no such infirmity in the Decision.

Prior to installing the roof protection in accordance with NYC Building Code, W 108 will

provide Nour with a certificate of insurance showing that appropriate insurance coverage is in

place and that Nour is listed as an “additional insured.” Should W 108 experience any interference

from Nour while executing the unambiguous court-ordered license, W 108 would promptly inform

the Court of the difficulties it encountered with Nour to exercise the license granted, and would

propose that the Court find Nour in contempt, or grant other relief as deemed necessary. But in

no event, should the Decision as to the license be disturbed, especially given that Nour’s motion

does not dispute (and Nour has never opposed) the Court’s Decision to grant a license to W 108.

See Lustbader Aff., ¶ 4.

Should the Court find it necessary to add additional terms to the license under

RPAPL § 881, we respectfully urge the Court to consider and adopt the reasonable proposals set

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forth in W 108’s petition, to wit: a reasonable time period for the duration of the license,

installation of roof protection pursuant to applicable building code, and the procurement by W 108

of appropriate general liability insurance policy naming Nour as an additional insured for the

duration of the license.

CONCLUSION

Accordingly, the Court should deny Nour’s motion under CPLR § 2221 for leave to reargue

that portion of the Short Form Order of the Honorable W. Franc Perry, dated May 6, 2020, to

address the terms under which the license was granted to W 108 in its entirety, and grant such

other and further relief as the Court deems just and proper.

Dated: New York, New York
May 30, 2020

Respectfully submitted,

ZUMPANO PATRICIOS & POPOK, PLLC

s/ Michael S. Popok
Michael S. Popok, Esq.
Hamutal G. Lieberman, Esq.
417 Fifth Avenue, Suite 826
New York, New York 10016
(212) 381-9999

and,

LONDON FISCHER, LLP
Cory A. Simmons, Esq.
59 Maiden Lane
New York, NY 10038
(212) 972-1000

Attorneys for Petitioner
W 108 Development, LLC

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Motion-Secondary: W 108 Development Llc v. Nour Foundation

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