Couri v. Pavia
(Sup. Ct. N.Y. Cty. 4/29/05)
We represented: Defendant/Landlord
Hon. Joan A. Madden, J.S.C.
DECISION and ORDER Plaintiff James Couri ("Couri"), who is prose, moves by order to show cause for an order (1) granting summary judgment in his favor against defendant 18 East 73rd Sweet Company, (2) compelling compliance with certain discovery demands and requests for the deposition of defendant George Pavia, and (3) granting the disqualification and recusal of this court. Defendants oppose the motion, which is denied.
Background
This action arises out of a landlord tenant dispute. Couri resides at 18 East, 73 Street, New York, NY (the "Building") in Apartment 3B ("the Apartment") pursuant to a Lease dated September 27, 1996 between Couri, as tenant, and defendant George Pavia ("Pavia"), as landlord. Couri lives in the Apartment with his wife, Marlene Couri (together "the Couris"). Pavia also resides in the Building with his wife, defendant Antonia Pavia ("the Pavias"). The Pavias own the Building. Defendants Julian Pavia and Phillipa Pavia are the adult children of the Pavias and also reside in the Building. The Pavias maintain that Couri began to harass them after they refused to sell him the Building. Couri counters that the Pavias began to harass him after he brought a proceeding before the Department of Housing Preservation and Development ("DHCR") which resulted in a finding that the Building was subject to the Rent Stabilization Laws.
In 2002, shortly after the DHCR's determination, the Pavias commenced an action under Index No. 124625/02 against the Couris ("the 2002 action"), by order to show cause, in which the Pavias sought to compel access to Apartment in order to fix a water leak. The parties stipulated to give the Pavias access on the return date of the order to show cause. In addition to access to the Apartment to repair file leak, the complaint sought damages in the amount of $25,000, allegedly caused as a result of the water leak, and an order directing the Couris to provide the Pavias with a set of keys to their apartment. The Pavias were subsequently granted leave to amend their complaint to include a claim for ejectment based on allegations that Couri's conduct constituted a nuisance.
The Couris answered the complaint and asserted five counterclaims apparently alleging (1) fraud in the inducement in connection with the lease of the apartment and fraud and "cover-ups" regarding alleged violations of the Couris' tenancy, (2) harassment by the Pavias and interference with quiet enjoyment of the apartment, (3) abuse of process, malicious prosecution in connection with proceedings before the DHCR and in the action before the court, and false arrest, (4) defamation and slander, (5) various acts of tortious conduct wan-eating the issuance of a permanent injunction.
In 2003, Couri brought an action under Index No. 101709/03 ("the 2003 action"), containing five causes of action, which are virtually identical to the counterclaims, except that in addition to the Pavias the action names the Pavias' attorneys as defendants.
In the meantime, the Pavias sought and obtained a protective order against Couri from the criminal court. Subsequently, based on complaints filed by the Pavias a criminal proceeding was brought against Couri charging him with aggravated harassment in the second degree and harassment in the second degree. The criminal complaint was subsequently dismissed upon motion of the People in or about April 2004.
In or about April 28, 2004, Couri commenced another action under Index No.106226/04 ("the 2004 action"). The first two causes of action were similar to those contained in the 2003 action. The third cause of action, apparently for malicious prosecution, abuse of process, and false arrest is similar to the third cause of action in the 2003 action, except that it focused on the criminal complaint filed by the Pavias and includes allegations regarding the criminal complaint's dismissal.1
By decision and order dated October 12, 2004, the court denied defendants' motion to dismiss the 2004 action on the grounds that Couri's claims in the most recent action were virtually identical to his claims in the 2003 action.2 Instead, the court found that it was more appropriate to consolidate the 2003 and 2004 actions. At the same time, as the counterclaims asserted by Couri in the 2002 action were identical to his claims in the 2003 action, the court dismissed the counterclaims. In its order, the court directed that Couri not bring any further actions arising out of, or in any way related to, this dispute, including actions against any new defendants, without seeking permission from this court by order to show cause.
By decision and order dated February 8, 2005, this court granted defendants' motion for partial summary judgment dismissing Couri's claims for abuse of process (third cause of action), defamation (fourth cause of action), and a permanent injunction missing out of various torts. (fifth cause of action), contained in the consolidated action. The court also granted Couri's motion to dismiss defendants' three counter claims in the consolidated action.
Recusal Motion
Couri seeks to have this court recuse itself on the grounds that (i) the court has restricted motion practice and argument, (ii) the court is "prejudiced and biased,", (iii) the court dismissed certain claims against defendants, and (iv) counsel for defendants commented to Couri that he "did not have a chance" before this court.
When, as here, there is no statutory basis for the court's recusal under Judiciary Law ? 143 , the court is the sole arbiter of whether recusal is warranted. Best v. Best, 302 AD2d 295 (1st Dept 2003); Schwartz v Schwartz & Schlacter, 188 AD2d 285 (1st Dept 1992); see also, EECP Centers of America, Inc. v Vasomedical Inc., 277 AD2d 349 (2d Dept 2000). As set forth below, recusal is not appropriately granted in this case.
Couri's allegation that the court has inappropriately restricted motion practice and argument is belied by the record in these actions. The parties have made numerous requests for relief in connection with the 2002 action and the consolidated actions, and when warranted this court has written detailed decisions addressing these request.4 In addition, the court has directed oral argument on the record on the majority of the motions, while imposing reasonable time limits.
In view of the numerous motions made by both sides, on March 4, 2004 the court stated on the record that all further motions be made by order to show cause. Following this direction the court has signed the majority of the orders to show cause submitted by the parties, but has declined to sign certain orders to show cause submitted by Court and by defendants. When appropriate, this court has written a decision indicating the reasons for declining to sign the relevant order to show.
Next, Couri's allegations of prejudice or bias are without merit and unsupported by the record. Specifically, Couri's belated assertion that the couri's efforts to assist the parties in settling these actions over a year ago indicates prejudice or bias by the court is unsupportable. It appears that Couri bases his motion on his dissatisfaction with the February 8, 2005 decision dismissing certain of his claims for failure to state a claim, and thus, is an attempt to forum shop. As is evident from the decision, its legal conclusions are based on applicable legal authority as set forth in the decision, and does not provide a basis for recusal. Furthermore, while not condoned by the court, a comment from defendants' counsel regarding Couri's chances of prevailing in these actions, reflects the opinion of counsel only, and does not indicate any bias on the part of the court.
Couri also alleges that the court has not responded to his steady stream of correspondence containing accusations that defendants and their lawyers have committed perjury and other wrongful conduct, and notifying the court of various agency decisions regarding violations at the Building. Notably, the court has instructed the parties not to send letters to the court, but to seek relief formerly. In any event, the court's handling of Couri's letters does not provide a ground for recusal.
Thus, after careful consideration of the allegations for disqualification, this court finds that they are without merit.
Remaining Relief Sought by Motion
Couri seeks summary judgment on his claims against defendant 18 East 73rd Street Company, asserting that defendants' allegation in its answer that 18 East 73rd Street Company is a "non-existent corporation," and therefore that no answer is required on its behalf, is untrue and constitutes a default.
Couri is not entitled to summary judgment. Defendants submit Pavia's affidavit in which he states that 18 East 73rd Street Company is not a corporation but a partnership that no longer exists and, that 18 East 73rd Street Company never owned the Building or had any dealings with Couri. Under these circumstances, summary judgment is not warranted.
Couri also seeks to compel compliance with his discovery demands and notice of deposition of George Pavia served in connection with the 2004 action, which were served in November 2004. The requests for discovery were served after the court issued its decision dated October 12, 2004 consolidating the 2003 and the 2004 action. The note of issue in the 2003 action was filed in June 2004.
Couri's request for discovery is denied in part and granted in peat. The discovery requests are largely duplicative of those served in connection with earlier actions. Moreover, although the 2003 and 2004 actions are not identical, they contain many of the same allegations. However, the 2004 action, unlike the 2003 action, contains additional allegations regarding the illegal construction of the atrium/greenhouse, and the dismissal of the criminal complaint filed with the District Attorneys Office.
The court notes that the allegations in the 2003 action regarding the Pavias' conduct in connection with the filing of the criminal complaint and the dismissal of the complaint by the District Attorney's office is an undisputed matter of public record.
Furthermore, as for the alleged violations related to the greenhouse, they are based on complaints by Couri and have been considered by the Department of Buildings and the DHCR, which agencies have taken certain administrative actions and, thus, are matters of public record.5 To the extent that matters remain outstanding regarding other alleged violations at the Building, the court cannot delay the trial of those actions so as to allow Couri to obtain discovery based on complaints he recently filed with administrative agencies and which, in any event, concern matters which are peripheral to the issues in this litigation.
Notwithstanding the foregoing, Couri is entitled to certain discovery as the 2003 mad 2004 actions were consolidated after the note of issue in the 2002 and 2003 actions had been filed. Pavia is to be deposed and such deposition shall be limited to issues involving the basis for the criminal complaint mad its prosecution, and involving the atrium/greenhouse. Couri may obtain any documents in defendants regarding the atrium/greenhouse.
While this motion was pending, defendant Marlene Couri's lawyer, Jon Paul Robbins, Esq., submitted a letter advising the court that as Couri underwent surgery on April 19, 2005, Couri will be unable to return to work for six weeks together with an April 27, 2005 letter from Couri's doctor in support of his statement, which was submitted in-camera. The letter is general in nature and fails to delineate the basis for the doctor's statement.
A pretrial conference in this action was scheduled for April 21, 2005 and trial was to begin on May 2, 2005. Based on this decision and order finding that discovery needs to be concluded and as there is an issue regarding Couri's health condition, this court is setting this matter down for a status conference on June 9, 2005 at 3:30 p.m., which is also the return date for the order to show cause brought by the Pavias seeking to hold Couri in contempt for falling to comply with this court's February 9, 2005 order requiring Couri to deposit past and future use and occupancy for the Apartment by March 1, 2005.
Couri and counsel for the parties are required to appear on June 9, 2005 at 3:30pm for a status conference and all proceedings will be held on the record. Any nonappearance for medical reasons must be based on an affidavit or affirmation from a doctor specifically delineating the basis for statements and opinions. Furthermore, as this court has previously denied several applications by Couri to vacate and/or reargue the court's order that Couri deposit into tile court use and occupancy (motion seq. nos. 011,012 & 014), any challenge to this order must be made through an appeal and a request that a stay be issued pending the outcome of such appeal.
Conclusion
In view of the above, it is
ORDERED that Couri's request for discovery is granted only to the extent that (1) within 30 days of this decision and order defendants shall provide Couri with documents relating to the atrium/greenhouse, and (2) a limited deposition of Pavia shall be taken by Couri in accordance with this decision, and a conference call shall be held between counsel for the parties, Couri, and this court on May 12, 2005, at 4:00 pm, for the purpose of setting a date, place and time for Pavia's deposition; and it is further
ORDERED that Couri's motion for recusal is denied; and it is further
ORDERED that Couri's motion for summary judgment is denied; and is further
ORDERED that the parties shall appear in Part 11, room 351, 60 Centre Street, New York, NY on June 9, 2005 at 3:30 pm for a status conference.
DATED: April 29, 2005
1 In addition, the 2004 action named the Pavias adult children mad two corporations which are allegedly controlled by and/or are the alter egos of George Pavia as defendants.
2 The October 12, 2004 decision erroneously stated that the 2004 action contained five causes of action (instead of three), and that these causes of action were virtually identical to the five counterclaims asserted by Couri in the 2002 action, and the five causes of action asserted in the 2003 action. Nonetheless, the court did not dismiss the claims in the 2004 action, finding that the since the parties in the 2003 and 2004 actions were different, that it was more appropriate to consolidate the two actions.
3 Judiciary Law ? 14 mandates recusal when the court, or any family member, has an interest or connection with the parties.
4 The following is a list of motions made by the parties in the 2002 action: (1) motion seq. no. 001-Pavias' motion to compel access to Couri's apartment to repair leak; (2) motion seq. no. 002- Couri's motion to direct that certain repairs be made, to restrain the Pavias from interfering with his tenancy, and to direct a mental examination and Pavias' cross motion for a protective m-tier; (3) motion seq. no. 003-Pavias' motion for a protective order, (4) motion seq. no: 004- Pavias' motion for sanctions, (5) motion seq. no. 005-Court's motion to dismiss the complaint, (6) motion seq. no, 006- motion to consolidate, (7) motion seq. no. 007-Pavjas' motion to amend complaint and Court's cross motion seeking discovery and disqualification of Pavias' counsel, (8) motion seq. no. 008-Court's motion to reargue court's denial of motion seq. no. 002, (9) motion seq. no. 009-Couri's motion for summary judgment dismissing the complaint, (10) motion seq. no. 010-Pavias' motion for use and occupancy and related relief and Court's cross motion directing the Pavias to comply with DCR' s order and related relief,'(11) motion seq. no. 011-Conri's request that the court reduce the amount of rent, (12) motion seq. no. 012-Court's request for a reduction of the rent and a stay of the court's order requiring him to pay use and occupancy, (13) motion seq. no. 013-Court's request to reduce rents based on DHCR order and stay the collection of use and occupancy, (14) motion seq. no. 014-Court's request for discovery and reduction of rent, (15) motion seq. no. 015-Pavias' request for a judgment of ejectment based on Couri's failure to pay use and occupancy, (16) motion seq. _o. 016-Pavias' motion to reargue with respect to its request for a judgment of ejectment based on Couri's failure to pay use and occupancy.
The 2003 action was originally assigned to Justice Alice Schlesinger, who decidedmotion seq. nos. 001 and 002, seeking consolidation and joint trial. In motion seq. no. 003, the Pavias' moved to dismiss certain of Couri's causes of action, and Court cross moved to disqualify Pavias' counsel and to dismiss Pavias' counterclaims.
In the 2004 action, the Pavias' moved to dismiss the complaint, to enjoin Couri from commencing any further actions and to consolidate the 2004 and 2004 actions, and Court cross moved for sanctions and various other relief.
5 On December 2, 2004, based on the Department of Building's finding that the atrium was illegally constructed, the Commissioner of DHCR ordered that the Apartment's rent be reduced to the legally regulated rent in effect prior to the most recent guideline adjustment as of May 1, 2004, the first month following Couri's service of the complaint regarding the atrium on the Pavias. In its decision dated February 16, 2005, the court found that the DHCR order reducing the rent did not warrant a decrease in the amount of use and occupancy ordered by this court to be deposited by Couri, since such amount was based on the legally regulated rent as of October 1998, which amount is consistent with the Commissioner's order.