Pavia v. Couri
(Sup. Ct. N.Y. Cty. 8/26/05)
We represented: Plaintiff/Landlord
Joan A. Madden, J.
DECISION and ORDER The trial of these actions commenced on August 15, 2005, and after jury selection, for the reasons delineated below, the trial was adjourned to September 6, due to the health complaints of defendant James Couri ("Couri'). Thereafter, plaintiffs moved by Order to Show Cause, in motion seq. No. 019, to modify this court's order dated February 9, 2005, which directed Couri to deposit with the Court, by March 11, 2005, past and future use and occupancy in the amount of $1,820 per month. 1 Plaintiffs moved, in part, on the grounds that Couri has failed to pay any use and occupancy from November 2002 into the court and the amount of past use and occupancy was $58,163.38.
Couri opposed the motion and cross moved for an order staying the proceedings based on his health, seeking to have this court recuse itself, and seeking relief with respect to certain discovery issues. 2
As previously stated, the trial of this action commenced on August 15, 2005, and after jury selection, due to Couri's health complaints, it was adjourned to the August 16, and it is now scheduled to continue on September 6th. As Couri seeks a stay of the trial and recusal of this court, the motions must be resolved prior to September 6th and are deemed submitted as of August 24. Furthermore, the court notes that Couri's request for a stay impacts on whether Pavia's motion to hold Couri in contempt (motion sequence number 017) for failure to deposit past and future use and occupancy into the court should go forward. The hearing was scheduled to follow the trial, but due to the events delineated below, it was adjourned to August 23. Thus, this decision will address the rescheduling of the contempt hearing.
These actions arise out of a landlord tenant dispute. The Couris reside at 18 East 73"' Street, New York, NY (the "Building") in Apartment 3-B ("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 ("the Courts"). Couri is proceeding prose3 while his wife has an attorney, Paul Robbins, Esq. of McLaughlin & Stem, LL P.
Pavia and his wife, defendant Antonia Pavia ("the Pavias") own the Building, and reside there, as do their adult children, Julian Pavia and Phillipa Pavia. The Building is a brownstone with several small apartments leased to non-family members. The Pavias maintain that Couri began to harass them after they refused to sell him the Building, and that he harassed other tenants and is a nuisance. 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, that he is entitled to a rent abatement, and that Pavia has maliciously prosecuted him by having him arrested on baseless charges.
The Pavias commenced a lawsuit against the Couris and have the following remaining three claims in the action filed under Index No. 124625/02: (1) an ejectment claim based on allegations that Couri's conduct constituted a nuisance as set forth in the notice of termination served on Couri on July 16, 2003, which purported to end his tenancy on August 7, 2003, (2) a claim for damages resulting from water leak when Couri denied them access to the Apartment, and (3) a claim seeking a set of keys to the Apartment.
Couri sued the Pavias and their children 4 and has the following three remaining claims in the actions consolidated under Index No. 101709/03 5: (1) harassment by the Pavias and interference with quiet enjoyment of the Apartment, and claims relating to the Building's greenhouse, which he alleges is illegal and entitles him to an abatement, (2) fraud in the inducement in connection with the lease of the Apartment and fraud and "cover-ups" regarding alleged violations of the Couris' tenancy, and (3) malicious prosecution related to the criminal complaint the Pavias filed against Couri, and his arrest based on such complaint.
As noted above, the Pavias claim that the Couris owe past use and occupancy from November 2002 through August 31, 2005 in the amount of $58,163.38.6. 6 Moreover, Couri has failed to comply with the court's February 9, 2005 order, requiring Couri to pay past and future use and occupancy into the court, and accordingly the Pavias have moved for contempt. By decision and order dated August 12, 2005, this court granted the Pavias' motion for contempt to the extent of setting the matter down for a hearing on the sole issue of whether Couri can demonstrate that an April 2005 illness and hospitalization caused him financial harm which prevented him from complying with the February 9th order. 7
At the proceeding of August 23, 2005, Couri agreed on the record to the modification of the February 9th order to the extent of paying future use and occupancy directly to Jay Itkowitz, Esq., the attorney for the Pavias. Accordingly, in as interim order dated August 25, 2005, this court granted the Pavias' request to modify the February 9, 2005 order to the extent of ordering Couri to pay future use and occupancy of $1,820 a month. 8 The instant motions and cross motions must be analyzed in the context of the history of these proceedings and in light of certain events that occurred after the commencement of the trial. On August 15, 2005, the trial of these actions commenced with jury selection. During the final stage of jury selection when Couri and counsel were in the robing room exercising challenges, Couri stated that he was dizzy and asked to go to the restroom. The court asked if he could stand up and go into the hallway to get some fresh air, as jury selection was about to be completed, and after which there would have a break before opening statements. Couri said that it would help. Shortly thereafter, the court declared a recess.
During the break Couri left the courtroom and returned to inform the court that he was having chest pains, and that he was advised by his cardiologist, Dr. Weintraub, to go to the hospital, and, Couri invited the court to speak to Dr. Weintraub. While speaking on the record, after Couri waived, on a continuing basis, the physician/patient privilege as to Dr. Weintraub's statements about his medical condition, Dr. Weintraub stated that Couri should go to the nearest hospital by ambulance. Furthermore, Dr. Weintraub briefly provided certain information about Couri's medical history and stated he would be available the following day to inform the court as to whether Couri would be able to continue with the trial. While the court asked Couri several times whether he wanted an ambulance called, Couri declined and stated that he would take a taxi, and, rather than going to the nearest hospital, as advised by Dr. Weintraub, he chose to go to NYU hospital. The trial was adjourned until the next day for an evaluation of Couri's medical condition.
The jury returned on August 16th and after counsel was present, pursuant to Court's waiver and Dr. Weintraub's indication on the 15th that he would be available the following day to inform the court of Court's condition, Dr. Weintraub was asked on the record via a telephone conference for his evaluation. Dr. Weintraub stated on the record that in his opinion, it was unlikely that Court had a heart attack, and that while Couri was admitted to the hospital overnight, he was being discharged in about one hour, and that Court should be able to continue with the trial within 24 to 48 hours. Dr. Weintraub stated there was less than a 10% and probably less that 5% chance that Couri's complaints of chest pain were cardiac.
Dr. Weintraub's statements also indicated that he based his opinion on the results of three types of tests administered to Couri: (1) an EKG which was unchanged since 2003; (2) an angiogram which indicated nothing different from the one in 1997; and (3) blood tests – one called a CPT test which indicated that Couri results were slightly high, but since his results were generally slightly high, Dr. Weintraub said the result was of questionable diagnostic value; and a second blood test for which the results had not yet been received. Dr. Weintraub further stated that Court's heart muscle looked good.
According to Dr. Weintraub, Couri has a history of multiple severe blockages of the artery with two arteries totally blocked and one severely blocked, and that the blockages had not significantly changed since 1997. While a stent was inserted during the angiogram performed in the evening of the 15th, Dr. Weintraub explained it was for one of the obstructed arteries, and that in 1997, it would have required surgery far insertion of such a scent. Dr. Weintraub further explained that technology had advanced, so that today the stent could be placed during an angiogram without surgery.
According to Dr. Weintraub, during the angiogram, a catheter was placed over a wire which was threaded through the femoral artery, and at the end of the catheter is a balloon with a stent on its tip, so that when the balloon is inflated the stent is enlarged and left in the artery. Dr. Weintraub stated that the procedure is invasive insofar as the arteries are entered, but he also described the procedure as a non-surgical intervention and indicated that no incision is made in the chest. Dr. Weintraub further stated that the insertion of the stent was preventative, and that Couri' cardiac condition is better now than previously.
The contempt hearing, as noted above, was to be held after the trial. However, in light of the adjournment of the trial to September 6th, and Dr. Weintraub's statement that Couri could go forward in 24 to 48 hours, the contempt hearing in conjunction was adjourned for a week, to Tuesday, August 23. On that date, argument was also scheduled in connection with Pavias' order to show cause to modify the court's February 9, 2005 order to direct the payment of use and occupancy to the Pavias.
During argument on August 23, Couri submitted, and the court accepted a letter from a Dr. Jofiah addressed "To Whom It May Concern," dated August 19, 2005 indicating that Couri was undergoing evaluation for acute coronary syndrome, has anginal symptoms and should limit stressful activities that trigger these symptoms. He also resubmitted the angiogram report from August 15, 2005, and excerpts from an unidentified source describing angina. During the proceeding, Couri complained of chest pains and based on this complaint, an ambulance was called. While waiting for an ambulance, Couri left the courtroom and on his return informed the court that he had taken a pill, which he identified as nitroglycerin. The ambulance arrived and took Couri to the hospital. The matter was adjourned to Wednesday, August 24 at 2:00 pm, and the court informed Couri that, if he was unable to personally appear, he could appear by telephone conference or by a representative.
Couri did not appear in person on the August 24, nor by telephone, nor by a representative. Instead, Couri hand wrote a letter to the court stating that on August 23 he went to NYU hospital and the cardiologist who saw him advised him that an angiogram should be performed, which procedure he declined. He signed a release and discharge form as to the hospital and its physicians and signed himself out against medical advice. In his letter, Couri indicated that he is seeking other opinions, and is scheduled to undergo further tests. In addition to the letter and discharge form, Couri submitted a type-written form entitled Pre-Hospital Care Report (patient information disclosure) apparently from the ambulance technicians, and a separate page of handwritten notes that does not identify its author, and are written on plain white paper, without any treading or other identifying information.
On August 24, the Pavias moved to hold Couri in default on the contempt hearing for failing to provide competent medical evidence that his medical condition prevented him from appearing on that day as directed by the court. Pavias' attorney based his request on the grounds that in an August 16 telephone conference, the court directed Couri to provide competent evidence regarding his condition. The Pavias also argued, based on Dr. Weintraub's medical statements, that Court did not suffer a heart attack, and that stent which was inserted on August 15 was based on Couri's condition, i.e. blocked arteries, diagnosed back in 1997. The Pavias further argued that since Dr. Weintraub had indicated on August 16 that Court could resume the trial within 24-48 hours, there was no medical reason that Court could not go forward with the hearing a week later on August 24th. Finally, the Pavias argued that Couri's search for another doctor was motivated by Couri's dissatisfaction with Dr. Weintraub's statements that he did not suffer a heart attack and that he would be able to go forward within 24-48 hours.
The above sequence of events is directly relevant to Court's cross motion for, interalia, a stay of this proceeding based on his medical condition. A party seeking an adjournment of a proceeding based on his medical condition must present competent medical evidence of the condition and its effect of his ability to go forward. Ferran v. Dwyer, 252 AD2d 758 (3d Dept 1998); People v. Lubash, 173 Misc2d 524 (Sup Ct Queens Co. 1997).
As Couri has a medical condition, the focus of this court's inquiry is on the effect of such condition on his ability to continue the trial on September 6th and to go forward with the contempt hearing. At the outset, based on Dr. Weintraub's statements, and to a certain extent the documents submitted by Couri, it has been established that Couri has multiple blocked arteries diagnosed as early as 1997. A 1997 letter from Dr. Benjamin Lewis states that Court was opposed to surgery for the condition and committed to medical therapy. 9 A May 14, 2003 "To Whom 1t May Concern" letter from Dr. Weintraub indicates he has been under his care since 1999, has multi-vessel coronary artery disease, and advises that he avoid exposure to emotionally stressful situations. 10
Couri further submits the following: (1) the August 15, 2005 angiogram report, (2) PET MYOCARDIAL viability report of 8/1/01 with impressions, 11 and (3) a 1999 CAT SCAN of chest indicating coronary artery calcification.
Couri submits random and unexplained documents regarding his medical condition and treatment. Couri argues in his papers and on the record on August 23, that he had a mild heart attack on August 15, and that he has unstable angina. However, what can be gleaned from the records and from Dr. Weintraub's statements is that Couri has multiple blockages in his coronary arteries. In 1997 surgery was considered, and Couri chose medical therapy. The 2001 PET and the 1999 CAT SCAN were apparently performed in connection with these blockages. With respect to Couri's complaints on August 15th of chest pains, Dr. Weintraub stated that the results of the angiogram which was performed showed that MB heart condition was not significantly different than it was in 1997. As for Couri's complaints of chest pains on August 23, 2005, as Couri signed himself out of the hospital against medical advice and submits no medical records from the hospital other than the release and discharge form, there is no medical evaluation as to his condition. Nor does the disclosure form from the ambulance provide any information as it relates to privacy practices, and the handwritten notations are without any foundation.
As to Dr. Josiah's letter of August 19, 2005, his statements that Couri is undergoing evaluation and has anginal symptoms are general and lack any specificity regarding any examination, diagnostic tests, or other basis for his conclusions. The letter does not even indicate when Dr. Josiah first saw Couri or whether he, in fact, examined or performed any tests or examined any of Court's medical records. Thus, this letter is insufficient to demonstrate whether Couri's medical condition prevents him from continuing with the trial on September 6th.
Thus, at this time, Couri has failed to present competent medical evidence explaining or evaluating his current medical condition. Without competent medical evidence, the court cannot evaluate the significance of Couri's complaints regarding his medical condition and make a determination as to whether the trial should go forward on September 6th. However, the court will evaluate any competent proof on Couri's medical condition when, and if, it is presented. Couri also cross moves for an order seeking this court's recusal based on allegations of bias and prejudice.
When, as here, there is no statutory basis for the court's recusal under Judiciary Law ? 14, the court is the sole arbiter of whether recusal is warranted. Best v. Best, 302 AD2d 295 (1" Dept 2003); Schwartz v Schwartz & Schlacter,188 AD2d285 (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.
The court notes that Couri previously moved to have this court recuse itself on the various grounds including that the court was "prejudiced and biased. 12 By decision and order dated April 29, 2005, this court denied the motion finding, interalia, that Couri's allegations were unsupported by the record.
In support of the instant motion, Court submits his affidavit in which he avers, without substantiation, that the court has exhibited bias and prejudice which has caused him stress that has worsened his medical condition. Couri also states that the court required him to remain in court when he was having chest pains on August 15, 2005, and that the court has interfered with his medical care. 13 Couri further asserts that the court has displayed bias in favor of the Pavias, but provides no basis for this allegation other than an unworn letter written to the administrative judge of this court.
Couri's allegations are belied by the record in this case, and essentially argue that a court may not require competent medical proof from a litigant who seeks to stop a trial based on his medical condition. As previously indicated, when Couri stated that he was dizzy during the final stage of jury selection, and asked to go to the restroom, the court asked if he could stand up and go into the hallway to get some fresh air, as jury selection was about to be completed after which Couri would have a break before opening statements. Couri said that would help. After the break, Court complained of chest pains and invited the court to call Dr. Weintraub who was called immediately and who spoke on the record for several minutes, after which Couri refused an ambulance and left to take a taxi. Thus, the court promptly addressed Court's complaints of illness. Furthermore, at no time did the court direct Couri to remain in the courtroom. In addition, the court asked Couri several times whether he wanted an ambulance called and Couri declined and stated that he would take a taxi and, rather than going to the nearest hospital as advised by Dr. Weintraub, he chose to go to NYU hospital. The next day after Couri was discharged from the hospital and after Dr. Weintraub stated that Couri could go forward with the trial within 24 to 48 hours, the court had an afternoon telephone conference with Couri and the attorneys for the Pavia and Mrs. Couri on the record, for purpose of scheduling a date to continue the trial.
When Couri appeared in court on August 23, 2005, as he again asserted that he had chest pains, the court immediately had an ambulance called. When Couri was taken to the hospital he decided to refuse treatment and signed a release. The court further notes that it had previously adjourned the trial at Couri's request in April 2005, so that he could undergo intestinal surgery (see footnote 10), and thereafter so he could attempt to obtain an attorney.
Couri's allegations, stripped of their rhetoric, bases his claims of bias and prejudice on the instruction of the court that Couri submit medically competent evidence of his medical condition in connection with his request for a stay of these proceedings. Medically competent evidence is particularly significant under these circumstances where a jury trial has commenced, and Couri's treating cardiologist, Dr. Weintraub, has stated that he could go forward within 24 to 48 hours after his discharge on August 16.
Couri's remaining allegations of bias apparently arise out of the court's denial of Couri's attempts to reduce the amount of use and occupancy to be paid into court based on alleged violations regarding the greenhouse. As stated in this court's decision denying Couri's prior motion for such a reduction, the issue as to the rent adjustment based on the greenhouse was considered by DHCR which issued an order dated December 2, 2004 reducing the rent to "the legal regulated rent that was in effect prior to the most recent guidelines adjustment as of the effective date of May 1, 2004" which was $1,820, the amount the court directed Couri to pay into the court for past and future use and occupancy. Moreover, as is evident from the court's decisions related to this matter, its legal conclusions are based on applicable legal authority, and specifically address Court's arguments regarding the greenhouse. 14
Thus, after careful consideration of the allegations which provide the basis for Couri's cross motion seeking the court's recusal, this court finds that not only are they without merit but, under the circumstances of this case, appear to be nothing more than forum shopping, and an apparent attempt to stop the trial and contempt hearing from going forward. Thus, not only does the baselessness of the grounds alleged, but also the integrity of the judicial system, require that the request that this court recuse itself be denied.
With respect to the hearing on the contempt, the court notes that at the commencement of trial on August 15, 2005, the court directed that the contempt hearing would follow the trial. If the trial goes forward on September 6th, the contempt hearing will follow. However, if the trial is once again adjourned, the contempt issue can no longer be delayed, especially given the long standing failure of Couri to comply with this court's order, and the large amount of use and occupancy at issue. Under certain circumstances, the court may allow submission of papers on issues for which a hearing is generally held. Seee.g. ? 202.46(b) of the Uniform Rules of Trial Courts. Here, in the event the trial is again delayed, the court will require Couri to submit proof regarding his alleged financial inability to comply with the court's order due to his recent illness through admissible documentary evidence, including, but not limited to, income tax returns (subject to redaction) for several years, bank statements, medical bills, insurance information and other relevant documents, together with an affidavit explaining the significance of these documents.
Finally, Couri cross moves to preclude the Pavias from introducing certain evidence including all tape recordings and transcriptions relating to the claim that Couri should be ejected based his alleged conduct constituting a nuisance. Couri requested any recordings or other evidence relating to him as a tenant or otherwise in item 26 of his Interrogatories dated November 4, 2004. Accordingly, this aspect of the cross motion is granted to the extent of requiring the Pavias to provide to Couri any tape recordings or transcriptions supporting their nuisance claims on or before September 6; or provide an affidavit of a person with knowledge stating that no such evidence exists.
Conclusion
In view of the above, it is
ORDERED that Couri's cross-motion for a stay of the trial is held in abeyance pending the submission by Couri of competent medical proof regarding his condition on or before September 6, 2005 ; and it is further
ORDERED that upon the request of Pavias' attorneys, Couri shall provide HIPPA compliant authorizations for all health care providers on whom Court relies in his submissions and his treating physicians for the last six months; and it is further
ORDERED that Court's cross motion seeking to have this court recuse itself is denied; and it is further
ORDERED that Couri's cross motion to compel certain discovery is granted to the extent that the Pavias are directed, on or before September 6, 2005, to provide Couri any tape recordings or transcriptions supporting their nuisance claims, or to provide an affidavit of a person with knowledge stating that no such evidence exists.
DATED: August 26, 2005
J.S.C.
1 During a court appearance by the parties on August 23, 2005, Couri agreed on the record to pay future use and occupancy in the amount of $1,820 per month to the Pavias, through their counsel, Jay Itkowitz, beginning on September 1, 2005. Accordingly, the request that Couri pay future use and occupancy directly to plaintiffs was granted pursuant to an interim order dated August 25, 2005.
2 In the absence of any objection, any procedural defects as to the cross motion are deemed waived.
3 Although he is prose, Couri has extensive litigation experience representing himself and has been involved in multiple law suits. His experience is evident from the manner in which he has conducted this litigation, including the numerous motions he has made in these actions.
4 Couri commenced two lawsuits against the Pavias and others under Index Nos. 101709/03 and 106226/04. Couri also sued Pavias' law film and individual lawyers employed there.
5 By decision and order dated October 10, 2004, this court consolidated these actions under Index No. 101709/03
6 This amount was arrived at by multiplying monthly use and occupancy of $1,820 for 34 months for a total of $61,880. Deducting $3,716.62, the amount of the overcharge found by D13CR, leaves an amount of $58,163.38.
7 The court found that the Pavias has established the four requirements for civil contempt by a preponderance of the evidence, and ordered a heating on the sole remaining issue, which was whether Couri provided a sufficient excuse for his failure to comply with the court's order based on his alleged financial situation arising out of his April 2005 surgery.
8 The payments were made to Pavias' attorney, Mr. Itkowitz commencing on September 1, 2005, and thereafter on the 1st day of each following month, pending further court order.
9 Two undated letters from a Dr. Dennis Reiser and a Dr. Martin Post, which at oral argument on August 23, Couri stated were written in 1997 indicate that Court was being considered for surgery. Dr. Post specifies angioplasty or coronary artery by-pass surgery.
10 In addition, Couri submits an April 15, 2005 letter from Dr. Chabot stating that on April 17, 2005, Couri was scheduled for surgery which Couri previously described as intestinal surgery.
11 While the report indicates some normal and some abnormal findings, the significance of these findings cannot be discerned in the absence of medical explanation.
12 The motion was motion sq. no. 004 in the action brought by Couri under Index No.101709103.
13 The court notes that Couri includes as an exhibit unsown statements and hearsay by Couri in an August 18, 2005 letter to the administrative judge, which are not properly considered.
14 The court addressed the issue of whether the amount of use and occupancy owed should be reduced in view of the alleged violations regarding the greenhouse in its decision and orders dated February 9, 2005 and February 16, 2005 (motion seq. Nos. 012 & 013 filed under Index No. 124,625/02).