Couri v. Pavia
(Sup. Ct. N.Y. Cty. 8/12/05)
We represented: Plaintiff/Landlord
Hon. Joan A. Madden, J.S.C.
DECISION and ORDER Plaintiff James Couri ("Couri"), who is pro se, moves by order to show cause for an order (1) compelling the continued deposition of defendant George Pavia, (2) striking Pavias' answer and precluding any evidence not previously produced regarding the greenhouse, the dismissed criminal proceeding against Couri, and Pavias' nuisance claim against Couri, and (3) awarding sanctions and costs against defendants. Defendants oppose the motion, which is denied.
Background
This action arises out of a landlord tenant dispute. Couri resides at 18 East 73rd 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 (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 the 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 warranting 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 were virtually identical to the counterclaims in the 2002 action, 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 was 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 that 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 the 2002 action. 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 arising out of various torts (fifth cause of action), contained in the consolidated action. The court also granted Couri's motion to dismiss defendants' three counterclaims in the consolidated action.
Motion to Compel Discovery
Couri subsequently moved, by order to show cause, for various relief including compelling 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.
In its decision and order dated April 29, 2005, the court defiled in part and granted in part Couri's request for discovery. In denying most of Couri's discovery requests, the court wrote that such requests were "largely duplicative of those served in connection with earlier actions" and that "although the 2003 and 2004 actions are not identical, they contain many of the same allegations." The court acknowledged that "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, however, noted 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." And, with respect to the alleged violations related to the greenhouse, the court noted that such violations were "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."3 It further wrote that "[t]o the extent that matters remain outstanding regarding other alleged violations at the Building, the court cannot delay the trial of these 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."
Nonetheless, the court found that Couri was entitled to entitled discovery particularly as the 2003 and 2004 actions were consolidated after note of issue in the 2002 and 2003 actions had been filed. The court thus directed that Pavia be deposed and that such deposition be limited to issues involving the basis for the criminal complaint and its prosecution and involving the greenhouse. The court also directed that within 30 days of the decision and order that defendants provide Couri with documents relating to the greenhouse.
Pavia's deposition was taken by Couri on June 2, 2005. It began at approximately 11:00 a.m., and ended at 2:00 pm, when Couri left, stating that he could not take the deposition due to "health issues" in connection with the surgery he underwent in April (Couri did not indicate he had a medical appointment scheduled for the afternoon.) He stated that he informed the court that he could only proceed to 2:00 or 2:30 p.m. due to medical restraints," and that Pavia should have come at 9:00 am or 9:30 am, so that there would be adequate time to complete the deposition.4 Couri also indicated that he did not reserve the room for the afternoon. Couri stated on the record that he would seek to have the deposition continued. Pavia's attorney objected to a further deposition, asserting that the court-ordered deposition should not end until 5:00 p.m.
The Instant Motion
Couri now moves for an order compelling the continued deposition of Pavia, and striking defendants' answer and precluding any evidence not previously produced regarding the greenhouse, the dismissed criminal proceeding against Couri, and Pavias' nuisance claim against Couri. Defendants oppose the motion, arguing that the questioning during the deposition was repetitious, and that Couri was required to continue the deposition until 5:00 pm.
Although defendants do not specifically oppose that part of Couri's motion seeking to strike their answer or to precluding certain evidence from being introduced at trial, this aspect of the motion is denied. Notably, the court's decision and order dated April 29, 2005, did not require that defendants provide any further discovery regarding the dismissed criminal proceeding or their nuisance claim.
With respect to the greenhouse, Couri alleges that "[o]nly a few relevant records regarding the greenhouse were produced, but not a single Department of Building permit, approval, sign off was produced, regarding the greenhouse." However, Pavia's deposition testimony reflects that when the greenhouse was built in late 1977 and early 1978, no approval or permit was obtained.
In addition, a review of the deposition transcript indicates that Churl was in possession of the relevant documents concerning the greenhouse, and that he made no requests for specific documents during his questioning of Pavia about the greenhouse. Thus, there is no basis for finding that defendants are in violation of the court's order requiring the production of regarding the greenhouse. That being said, however, the court notes that the defendants have a continuing obligation to provide Couri with any documents regarding the greenhouse (and other relevant issues) and, depending on the circumstances, the court may prevent defendants from admitting documents at trial that were not provided to Couri in discovery.
Next, Couri's request to take a further deposition of Pavia is denied. A review of the deposition transcript indicates that although both sides interrupted each other and some harsh words were exchanged, Couri had an adequate opportunity to question Pavia regarding the greenhouse and the basis for the criminal complaint and its prosecution, Pavia adequately responded to these questions. In any event, to the extent Couri had additional questions to ask Pavia, he waived his right to ask them when he decided to end the questioning at 2:00 p.m., based on vague references to "health restraints" and his purported failure to reserve the room for the afternoon. Notably, Couri does not explain why he could depose Pavia from 9:30 am-2:00 p.m., but not from 11:013 a.m. to 5:00 p.m.
Finally, Couri's request for sanctions and costs against defendants is denied.
Conclusion
In view of the above, it is
ORDERED that Couri's motion to compel a further deposition of Pavia is denied; and it is further
ORDERED that Couri's motion to strike Pavias' answer and to preclude certain evidence is denied; and it is further
ORDBRED that Couri's request for sanctions and cost against defendants is denied.
DATED: August 12 2005 J.S.C.
1 In addition, the 2004 action named the Pavias adult children and 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 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 fine 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 regular rent as of October 1998, which amount is consistent with the Commissioner's order.
4 Couri's statement is consistent with a May 19, 2005 letter that he sent to Pavia's counsel.