Pavia v. Couri

(Sup. Ct. NY Cty. 9/29/03)

We represented: Plaintiff/Landlord

Joan A. Madden, J.

DECISION and ORDER Defendant James Couri (“Couri”)¹, who is pro se, moves for an order (1) directing plaintiffs to make certain repairs and improvements to the premises located at 18 East 73rd Street, New York, NY (“Building”), (2) directing the mental examination of plaintiff George Pavia (“Pavia”), and (3) restraining and enjoining plaintiffs from interfering with defendant’s tenancy and from harassing and threatening defendants (motion seq. no. 002). Plaintiffs oppose the motion and cross move for a protective order pursuant to CPLR 3103(a) regarding defendants’ Notice of Medical Examination of Pavia.

Couri also separately moves to dismiss the complaint against him, and defendant Marlene Couri cross moves for the same relief. (motion seq. no. 005)². Couri also seeks to restrain defendants and their counsel from communicating with him and from filing any further claims or actions against him without court permission. Plaintiffs oppose the motion and cross motion.

Plaintiffs are the owners of the Building and also reside on its top floor. Defendants reside in Apartment 3-B. This action was commenced by Order to Show Cause in which plaintiffs sought to compel access to defendants’ apartment in order to fix a water leak. The first cause of action seeks damages in the amount of $25,000, allegedly caused as a result of the water leak; the second cause of action seeks an order directing defendants to provide plaintiffs with a set of keys to defendants’ apartment; and the third cause of action seeks an order requiring defendants to give them access to the apartment to fix the leak.

On the return date of the Order to Show Cause the parties entered into a stipulation which was so-ordered by the court, under which defendants agreed to allow plaintiffs’ plumbers access to fix the water leak. Defendants subsequently answered the complaint and asserted counterclaims alleging harassment by plaintiffs.

Motion Seq. No. 002

Couri’s motion seeking an order directing plaintiffs to perform certain repairs and renovations at the Building and to compel the mental examination of Pavia must be denied.

The pleadings in this matter do not allege that any repairs or renovations are needed or set forth any basis for requiring plaintiffs to perform such repairs or renovations. And, such relief cannot be granted simply as a result of Couri’s request for it.

Moreover, it has not been sufficiently shown at this juncture that Couri is entitled to injunctive relief which grants the ultimate relief sought in his counterclaims. Zanahi v. State, 204 AD2d 313 (2d Dept 1994).

Next, there are no grounds for directing that Pavia undergo a mental examination. CPLR 3121 provides that when the mental condition of a party is in controversy, any other party may serve examination by a notice upon a party to submit to a physician. The burden of showing that a mental condition is in controversy is on the party seeking disclosure. Koump v. Smith, 25 NY2d 287, 303 (1967). To meet this burden, the party may not rely on “conclusory allegations” but instead must provide “affidavits containing evidentiary matter and made by a person having knowledge of the facts.” Williams by Williams v. Roosevelt Hospital, 108 AD2d 9, 13 (1st Dept), aff’d 66 NY2d 391 (1985). In this case, allegations that Pavia has been harassing and threatening defendants does not provide a sufficient basis for showing that Pavia’s mental condition is at issue here. Accordingly, the motion to direct Pavia’s mental examination is denied and the cross motion for a protective order is granted.

Motion Seq. No. 005

The motion and cross-motion to dismiss the complaint must be denied. At the outset, the court notes that dismissal is not properly granted as issue has been joined and the complaint on its face states a claim. Next, assuming that the motion and cross motion are for summary judgment, defendants have not made a prima facie showing entitling them to dismissal of the complaint as a matter of law. See Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 852 (1985) (holding that on a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case…”)

Here, defendants have not sufficiently established that the water leak from their apartment did not cause the alleged water damage to the plaintiffs’ residence, or that plaintiffs suffer no losses as a consequence of such purported damage. Likewise, at this juncture, it cannot be said that plaintiffs, as the owners of the Building, are not entitled to a set of keys for defendants’ apartment .³ Finally, Couri has not made a sufficient showing to entitle him to injunctive relief against plaintiffs or their attorneys. See The New York Auto. Ins. Plan v. New York Schools Ins. Reciprocal, 241 AD2d 313, 314 (1st Dept 1997)

Conclusion

In view of the above, it is

ORDERED that Couri’s motion for an order directing plaintiffs to make certain repairs and improvements to the premises located at 18 East 73rd Street, New York, NY (“Building”), (2) directing the mental examination of plaintiff George Pavia (“Pavia”), and (3) restraining and enjoining plaintiffs from interfering with defendant’s tenancy and from harassing and threatening defendants is denied (motion seq. no. 002); and it is further

ORDERED that plaintiffs’ cross motion for a protective order pursuant to CPLR 3103(a) regarding defendants’ Notice of Medical Examination of Pavia is granted; and it is further

ORDERED that the motion and cross motion to dismiss and the motion for injunctive relief (motion seq. no. 005) are denied.

ENDNOTES

¹Couri’s wife, plaintiff Marlene Couri, is represented by counsel.
²Motion seq. nos. 002 and 005 are consolidated for disposition.
³The cause of action regarding access to the defendants’ apartment to fix the water leak is moot as such access has already been provided.