Pavia v. Couri
(Sup. Ct. NY Cty. 6/28/04)
We represented: Plaintiff/Landlord
Hon. Joan A. Madden, J.S.C.
DECISION and ORDER Defendant James Couri ("Couri")1 who is Pro se, moves for summary judgment dismissing plaintiffs' claims asserted in the amended complaint. Plaintiffs oppose the motion2 which is denied for the reasons below.
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.3 Defendants subsequently answered the complaint and asserted counterclaims alleging harassment by plaintiffs. Plaintiffs have replied to the counterclaims asserted by plaintiffs.
Plaintiffs subsequently moved to amend their complaint to add a cause of action for ejectment. The cause of action was based on allegations that Couri committed a nuisance in the Building bye inter alia, (i) sending harassing letters to plaintiff, George Pavia ("Pavia") containing insults, racial slurs, and threats directed at Pavia; (ii) making harassing telephone calls to 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. Based on the alleged conduct, Couri was served with a Notice of Termination purporting to terminate Couri's tenancy on August 7, 2003.
By decision and order dated January 30, 2004, the court granted the motion to amend, finding that plaintiffs had alleged sufficient facts to establish a prima facie cause of action and that Couri's denials of the conduct were insufficient to overcome the presumption of validity of the proposed amendment. Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 (1st Dept 1989).
Couri now moves for summary judgment dismissing the claims in the amended complaint with respect to the claim for $25,000 in damages in connection with the water leak, Couri argues that Pavia's deposition testimony demonstrates that the claim is without merit since Pavia was unable to testify as to the basis for the amount of damages sought. In addition, Couri asserts that the water damage claim is covered by Pavia's insurance policy, and that Pavia's deposition testimony to the contrary and that he did not know the name of his insurance company is a sham. Couri also asserts that there is no factual basis for the ejectment claim against him and that the record contains no evidence, such as affidavits from fellow tenants to support such claim.
Plaintiffs oppose the motion, arguing that Couri's prior motion for summary judgment addressed to the first three causes of action prevents him from moving again for the same relief. In addition, plaintiffs argue that there are triable issues of fact regarding the nuisance claim and submit Pavia's affidavit in support of this argument.
On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tenderingsufficient evidence to eliminate any material issues of fact from the case…" Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 (1985). Once the proponent has made this showing, the burden of proof shifts no the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. ProsDect Hospital, 68 NY2d 320, 324 (1986).
Here Couri has not made out a prima facie showing entitling him to relief. Thus, the proof submitted on the motion is insufficient to demonstrate as a matter of law that the water damage to the Building was not caused by the water leak from plaintiffs' apartment. And, although Pavia's deposition testimony suggests that defendant may have difficulty proving damages at trial, such testimony does not establish a defense as a matter of law. Moreover, while Couri has challenged Pavia's truthfulness, issues of credibility may not be determined on a motion for summary judgment. See Moustaffa v. Citv of New York, 252 AD2d 472 (1st Dept, 1998). And, the evidence submitted by Couri is insufficient to establish that plaintiffs' as the owners of the Building, were not entitled to a set of keys for defendants' apartment.
With respect to the ejectment claim based on nuisance, Couri's denial of the underlying conduct does not entitle him to summary judgment since Pavia's affidavit is sufficient to raise a triable issue of fact. Additionally, plaintiffs' failure to support their nuisance claims with affidavits from other tenants in the building is not dispositive since much of the complained of conduct by Couri was directed at Pavia.
In view of the above, it is:
ORDERED that Couri's motion for summary judgment is denied.
1 Couri's wife, plaintiff Marlene Couri, is represented by counsel.
2 Plaintiffs belatedly submitted their opposition papers at oral argument due to excusable law office failure. See CPLR 2005; Vurdak v. Eaqle Ins. Co., 200 AD2d 518 (1st Dept 1994).
3 The cause of action regarding access to the defendants' apartment to fix the water leak is moot as such access has already been provided.