GEORGE PAVIA v. JAMES COURI

(Sup. Ct. NY Cty. 1/30/04)

We represented: Plaintiff/Landlord

Hon. Joan A. Madden, J.S.C.

DECISION and ORDER Plaintiffs move for an order (i) amending their complaint to assert a claim for ejectment; (ii) requiring the continuation of the deposition of Louis Conde {"Conde") at the sole cost and expense of defendants, (iii) directing defendants to pay plaintiff's legal fees in connection with the further deposition; (iv) directing defendant James Couri ("Couri") to immediately produce of "Exhibit I" from the June 24, 2003, deposition of Oscar Calex {"Calex"); (v) directing Couri to execute a stipulation providing for the consolidation of this action with Couri v. Pavia et al; Index No. 101709/03 ("the Couri action"); and (vi) imposing costs and sanctions on Couri.

Couri, who is pro se, opposes the motion and cross moves for an order (i) directing the deposition of Ted Kohl ("Kohl"), (ii) imposing costs and sanctions against plaintiffs and their counsel, Itkowitz & Harwood (the "Itkowitz firm"), and (iii) disqualifying the Itkowitz firm from representing plaintiffs and this matter. Defendant, Marlene Couri¹, who is Couri's wife, opposes the motion to amend on the grounds that the proposed cause of action for ejectment does not allege any wrongdoing by her.

Plaintiffs are the owners of 18 East 73rd Street, New York, NY ("Building") and also reside there. Defendants reside in the Building in Apartment 3-B pursuant to a Lease dated September 27, 1995 between Couri, as tenant, and plaintiff George Pavia ("Pavia"), as landlord. 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 parties stipulated to give plaintiffs access on the return date of the order to show cause. In addition to access to defendants' apartment to repair the leak, the initial complaint sought damages in the amount of $25,000, allegedly caused as a result of the water leak and an order directing defendants to provide plaintiffs with a set of keys to their apartment. Defendants each answered the complaint and each asserted counterclaims alleging harassment by plaintiffs, Plaintiffs have replied to the counterclaims asserted by each of the defendants.

In or about July 16, 2003, Couri was served with a notice of termination of his tenancy pursuant to Rent Stabilization Code § 2524(b). The notice alleged that Couri was committing a nuisance in the Building by, inter alia, (1) sending harassing letters to plaintiff, Pavia containing insults, racial slurs, and threats directed at Pavia; (ii) making harassing telephone calls involving threats and abusive language; (iii) engaging in a letter writing campaign of unfounded complaints directed against Pavia and sent to various individuals and entities, including, the New York Bar Association, New York Times, other tenants in the Building, and the New York City Police Department; and (iv) harassing tenants in the Building, including one tenant who eventually abandoned his apartment as the result of such harassment. The notice purported to terminate Couri's tenancy on August 7, 2003.

Motion to Amend

Plaintiffs move to amend their complaint to add a cause of action for ejectment based on the complained of conduct contained in the notice of termination. In support of the allegations in the notice, plaintiffs submit the affidavit of Pavia, who states that after he refused to sell the Building to Couri, Couri began a campaign of harassment which included (i) sending over 230 letters to him and his representative which include "racial slurs, inappropriate sexual comments and all manner of threats;" (ii) making harassing telephone calls, (iii) refusing access for repairs, and (iv) harassing Couri's neighbor and other tenants in the Building.

As result of the alleged harassment, Pavia has obtained an order of protection against Couri. In addition, it is undisputed that Couri is the subject of a criminal proceeding for aggravated harassment in the second degree and harassment in the second degree. Couri moved to dismiss the criminal complaint, and the motion was denied.

In opposition, Couri denies the allegations of harassment and asserts that Pavia is retaliating against him for his role in obtaining a ruling from the DHCR that the Building is rent-stabilized. He also asserts that Pavia and the Itkowitz firm are using fraud and deception to take away his home and deprive him of his rights under the rent-stabilization code.

Couri's opposition does not provide sufficient grounds for denying plaintiffs' motion to amend. In the absence of either prejudice or unfair surprise resulting from delay, Murray v City of New York, 43 NY2d 400, 404-405, reargument dismissed, 45 NY2d 966 (1977), requests for leave to amend should be freely granted (CPLR 3026[b]), unless the proposed amendment is plainly lacking in merit. Thomas Crimmins Contracting Co., Inc. v City of New York, 74 NY2d 166 (1989).

In this context, the courts define prejudice as a "some special right lost in the interim, some change of position, or some significant trouble or expense which could have been avoided had the original pleading contained what the amended one wants to add." Barbour v. Hospital for Special Surgery, 169 A.D.2d 385, 386 (1st Dept. 1991)(citations omitted); See also Siegel, New York Practice, § 237, at 379 (3d ed. 1999) Here, there is no prejudice of this nature or unfair surprise resulting from the delay.

With respect to the merit of a proposed amendment, the "proponent must allege legally sufficient facts to establish a prima facie cause of action… in the proposed amended pleading." Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 (1st Dept 1989). Once the proponent has met this burden, the court must sustain the merit of the proposed pleading "unless the alleged insufficiency or lack of merit is clear and free of doubt." The opposing party thus has to "overcome the presumption of validity in favor of the moving party, and demonstrate that the facts alleged and relied upon in the moving papers are obviously not reliable." Id.

Under this standard, the cause of action for ejectment is of sufficient merit to permit its addition. The Rent Stabilization Code provides that am owner may not evict a tenant unless it serves a notice of termination containing a ground for eviction under Section 2524.3, facts necessary to establish such a ground, and the date when the tenant is required to surrender possession (9 NYCRR 2524.2). Section 2524.3 states that a ground for eviction includes circumstances in which "[t]he tenant is committing or permitting a nuisance in such housing accommodation or the building including such housing accommodation." (9 NYCRR 524.3 (b)).

" A nuisance is a condition that threatens the comfort and safety of others in the building." Frank v. Park Summit Realty Corp., 175 AD2d 33, 35 (1st Dept), modified on other grounds 79 NY2d 789 (1991). Otherwise put, a nuisance "interferes with a person's use and enjoyment of the land." Domen Holding Co. v Aranovich, 1 NY3d 117(2003). That being said, "not every annoyance will constitute a nuisance." Id. Instead, "a nuisance imports a continuous invasion of rights- 'a pattern of continuity or recurrence of objectionable conduct.'" Id., quoting Frank v. Park Summit Realty Corp., 175 AD2d at 34.

Here, plaintiffs have served the requisite notice of termination and made out a prima facie case for ejectment on the grounds of nuisance based on the allegations in the proposed pleading as supported by Pavia's affidavit and other facts in the record. In particular, plaintiffs have adequately shown for the purpose of this motion that repeated conduct by Couri interfered with the use and enjoyment of the Building by Pavia and its other tenants. Although Couri vigorously denies the allegations relating to his conduct, a party seeking to amend does not have to prove the merit of a proposed amendment but only to show that it has prima facie merit. Daniels v Empire-0rr, Inc., 151 AD2d at 371. And, although Mrs. Couri is not alleged to have caused the nuisance, she nonetheless may be evicted if it is shown that her "conduct condoned the nuisance" or that her tenancy will cause the nuisance to continue, Frank v. Park Summit. Realty Corp., 175 AD2d at 36. Accordingly, the motion to amend is granted.

Discovery Issues

The parties each raise numerous issues in connection with discovery and, in particular, as to the non-party depositions Conde, who did work as a plumber in the building, and Calix, the President of the Company which employs Conde. Both Conde and Calix were involved in fixing the water leak that provided the basis for this action and communicated with Couri about getting access to his apartment. Plaintiffs now seek to have Couri provide them with an Exhibit I which was apparently used by Couri to question Calex at his deposition. Plaintiffs assert that Exhibit I is an illegally altered copy of Exhibit C-5, which was a work order introduced at Conde's deposition. According to plaintiffs, Couri refused to provide plaintiffs' counsel with Exhibit I so that plaintiffs counsel could question Conde about the Exhibit. Plaintiffs also seek the continued deposition of Conde at Couri's expense, asserting that the deposition was ended after Couri finished his questioning and left after refusing to provide plaintiffs' counsel with Exhibit I.

Couri denies the allegations and seeks the deposition of Kohl, a contractor hired by Pavia to renovate the Building and who provided support for Pavia's opposition to a proceeding filed with DHCR. Couri assert that Mr. Kohl ignored his subpoena. Plaintiffs counter that Couri withdrew the subpoena.

The discovery issues raised in this motion and any other discovery issues in the consolidated actions will be resolved by the court a discovery conference on February 19, 2004², and Couri is directed to provide Exhibit I and any copy of the Exhibit to the court at that time for in camera inspection.

Cross Motion for Disqualification

Couri's cross motion to disqualify the Itkowitz firm as counsel for the plaintiffs is denied.

"Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party's right to representation by the attorney of its choice…. " S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 443 {1987) (citations omitted). Moreover, disqualification motions "are often used as a litigation tactic 'inflicting hardship on the current client and delay upon the courts by forcing disqualification even though the client's attorney is ignorant of any confidences of the prior client.'" Talvy v American Red Cross in Greater New York, 205 AD2d 143, 148 (1st Dept 1994), affd 87 NY2d 826 (1995). Thus, the party seeking disqualification "bears the burden of establishing that such a drastic remedy is warranted." O'Donnell, Fox & Gartner v R-2000, 198 AD2d 154, 155 (1st Dept 1993).

Here, Couri has alleged that Itkowitz firm, through its attorneys, engaged in wrongful and fraudulent conduct with the plaintiffs which was aimed at removing Couri from his home, including participating in an attempt to deceive the DHCR in connection with a DHCR proceeding. In the Couri action, Couri has named the Itkowitz firm and two of its attorneys as defendants in connection with this alleged wrongful conduct. Nonetheless, in the absence of any evidentiary support for Couri's allegations, he has not met his burden of demonstrating grounds for disqualification of the Itkowitz firm or its attorneys. NYK Line (North America) v. Mitsubishi Bank, Ltd., 171 AD2d 486 (1st Dept 1991).

Consolidation

Plaintiffs' request that this court direct Couri to execute a stipulation providing for the consolidation of this action with the Couri action is denied as moot, as by decision and order dated September 29, 2003, Justice Alice Schlesinger consolidated the Couri action with this action to the extent of directing joint discovery and joint trial before this court.

Conclusion

In view of the above it is

ORDERED that plaintiffs' motion for leave to amend is granted and the amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this decision and order with notice of entry thereof; and it is further

ORDERED that defendants shall serve an answer to the amended complaint within 20 days of said service; and it is further

ORDERED that in the event the parties do not settle this action and the Couri action at the February 5, 2004 conference, a discovery conference shall be held on February 19, 2004 in Part 11, room 351 at 10:00 am; and it is further

ORDERED that Couri shall provide to the court on February 19, 2004 for in-camera inspection "Exhibit I" and any copies of "Exhibit I;" and it is further

ORDERED that plaintiffs' request that this court direct Couri to execute a stipulation providing for the consolidation of this action with the Couri action is denied as moot; and it is further

ORDERED that Couri's cross motion to disqualify the Itkowitz firm as counsel for the plaintiffs is denied; and it is further

ORDERED that parties' respective requests for sanctions are DATED: January 30, 2004

ENDNOTES

¹Marlene Couri is represented by counsel.
²The parties are scheduled to appear for a settlement conference on February 5, 2004 at 12:00 p m. If the conference results in a settlement of the dispute, the discovery conference would obviously be rendered moot.