Invoice or legal notice from New York Law Journal, Aug

z ■< z o 30 NEW YORK LAW JOURNAL Thursday, August 12, 2004 o g Greenbaum v. NYC (17314/02)—

Court Decisions o Motion Withdrawn I Hochman v. NYC (44232/01)—Motion ■0 o Granted c o Kornfeld v. NYCTA (699/99)—Grant CT o

CD Second Ext Short Form Order Linton v. NYC (39338/01)—Motion Granted o' "0 O CD CO Department “septic and water system,” the record establishes that tenant agreed to pay for said expenses pursuant to the lease LANDMARK PROPERTIES, res, v. EDWARD OLIVO, ap — Appeal by tenant Edward Olivo from a decision and order Fitzgerald, J.), entered on December 30, 2002. awarding plaintiff the principal sum of $460. Kaufman v. Silbert’s Bungalow Colony (33211/03)—Marked Off Krzeptowska v. Kanster (24016/02)— Mannino v. NYC (8540/95)—Motion Granted Mohamed v. NYC (11652/01)—Motion o 9L ejdension entered into in January 2002. of the District Court, Nassau County (J. Judgment unanimously reversed with­ Motion Withdrawn Granted The, expenses incurred in defending the Asarch, J.), entered December 26, 2003 out costs and action dismissed. Livshits V. Dec Inc. (26249/03)— O APPELLATE criminal proceeding cannot be recovered since the evidence adduced at trial estab­ after trial, deemed an appeal from the final judgment of possession entered In this small claims action to recover $1,150 for breach of an agreement to hire Motion Granted Morgan v. Lutheran Medical Center Montesi v. Caruso (16785/02)— Restored in Regular Order Morejon v. NYC (7637/00)—Motion o o c TERM lished that landlord provided tenant with a “drywell and drywell pump” in good working order pursuant to the original May 14, 2003, which brings up for review an order (K. Gartner, J.), entered July 25, 2002, vacating a decision and order on a chauffeured limousine, plaintiff has no standing to sue the defendant since she was not a party to the agreement or a (9524/04)—Motion Withdrawn Partenio v. Partenio (16725/03)— Granted Osovets V. Ammach (45408/03)— 3 CD Motion Granted Motion Granted 3 lease and that it was the over use of the stipulated facts dismissing the petition third-party beneficiary thereto. More­ Paul V. Andre’s Trucking (46953/03)— over, to the extent that the court below Osovets V. NYC (13675/02)—Consoli­ system by tenant that resulted in the and setting the matter down for trial. Motion Granted dated With CoadKaed from preceding page criminal proceeding commenced against awarded plaintiff the sum of $460, such Pimentel v. Pimentel (53157/02)— Final judgment unanimously affirmed an award appears to be a compromise Paul V. NYCTA (15531/04)—Case Dis­ it. without costs. Motion Denied It is noted that while landlord contin­ verdict. In light of the foregoing, the judg­ posed 2004 rent prior to the issuance of the in this holdover summary proceeding, Pimentel v. Pimentel (53157/02)— Romanov; NYC (11466/01)—Motion warrant. The petition sought only ues to hold the security deposit, tenant ment is reversed and the action dis­ Motion Granted landlord and tenants originally proceed­ missed inasmuch as the judgment did Withdrawn $1,453.91 and, upon a default, this is the did not assert a counterclaim for said ed upon a stipulation of agreed facts, Plascencia V. Quinn (1761/04)— deposit which, in any event, would have not render substantial justice between NYC V. 155 Ave. 0 (16595/04)—Motion maximum amount of rent that was and including that tenants had harbored, and Motion Granted Withdrawn could have been found to be owed, even exceeded $3,000 (UJCA 208). However, the parties according to the rules and Rakhman v. Al Omary Limo. Service continued to harbor, a dog; that this was TsaHidis v. NYC (1000/99)—Motion if a money judgment had been awarded tenant is not without a remedy as it can principles Of substantive law (see LUCA (6253/03)—Motion Granted in violation of the lease; that tenants had Withdrawn (Murray v. Rudolf Bass. Inc., 226 AD2d commence a plenary action to recover 1807). Riftin v, Mar Leasing Inc. (18165/03)— had the dog for approximately six years; Tsaklidts v. NYC (1000/99)—Motion 1068 [1996]; Port Chester Hous. Aulh. v. the security deposit. and that “The only issues involved herein BRESLIN, res, v. REALITY ROOFING Marked Off In view of the foregoing, we pass upon Denied Turner, 189 Mlsc2d 603 [2001]). Inas­ are whether as a matter of law the har­ INC. and REALITY ROOFING OF MINEO­ Rispoli v. Clyde Rlty. Corp. much as tenant paid landlord more than no other issue raised on appeal. boring of a dog as prohibited by the lease LA, INC., ap — Appeal by defendants (12446/04)—Motion Granted Justice Joseph S. Iovine the amount of rent sought in the petition ONORINO BROTHERS, INC., res., v. agreement is a violation of a substantial from an order of the District Court, Smith v. NY Fun Factory (12268/03)— Ameriquest Mortgage v. Gaffney and these payments were not earmarked SERGIO DeCHIARA, def — Appeal by obligation of the tenancy so as to entitle Nassau County (J. Spinola, J.), entered Marked Off (28915/03)—Motion Granted toward another obligation, it appears at defendant Benito DeChiara from a deci- the petitioner to recover possession of July 18, 2003, denying their motion to Thompson v. Chambers (27558/03)— Birkelund V. Quinones (1671/04)— this juncture that the warrant should not Sion of the City Court, City of New the apartment and whether a failure to dismiss the complaint. Motion Granted Motion WithdraAvn have issued (RPAPL 751 [1]: Bentone Rochelle, Westchester County (V. Rippa, offer a renewal lease and/or comply with Order unanimously modified by granti­ Vital v, Ramos Trucking Co. Clermont-Lundy v. Zimbalist Realty V. Jimenez. NYU, Mar. 28,1991 J.), dated June 27, 2002, and an amended a rent reduction order or orders [sic] ng defendants’ motion to the extent of (26035/03)—Motion Granted (4950/03)—Motion Withdrawn [App Term, 9th & 10th Jud Dists]; Matter decision of the same court, dated July prohibit the petitioner from bringing the dismissing the complaint as against Volovv. Rodriguez (14233/04)— Clermont-Lundy v. Zimbalist of Vaile V. Moritt. 222 NYS2d 290 [1961]). 26, 2002, deemed an appeal from a judg­ within proceeding.” Based upon the par­ defendant Reality Roofing of Mineola, Motion Withdrawn (4950/03)—Motion Denied In view of the fact that landlord has not ment entered August 5, 2002 (see CPLR ties’ submission, the court (K. Gartner, J.) Inc., and by dismissing the first cause of White V. Walker (486/04)—Motion Dignoti v. Plawes (42166/02)—Motion responded to tenant’s assertions with 5520[c}) which awarded plaintiff the dismissed the petition, finding, inter alia. action as against defendant Reality Roof­ Granted Granted respect to the proper amount of the legal sura of $16,383.24. that landlord’s prolonged toleration of ing Inc.; as so modified, affirmed without Willaims V. Pierre (14231/04)—Motion Dixon-Gray V. Dicesare (4481/04)— regulated rent, we condition restoration Judgment unanimously affirmed with the dog indicated that the lease’s no-pet costs. Withdrawn Motion Granted upon payment of arrears only at the rate $25 costs. clause was not a substantial obligation of Plaintiffs hired defendants to remove Williams v. Queens Network Cable Dzenis v. Maimonides Medical Center of $789.58 per month. Plaintiff commenced this action to the tenancy. the existing roof, and install a new roof, Corp. (31514/03)—Motion Granted (24248/99)—Motion Granted Pesce, P.J., and Aronin, J., concur. recover for work it performed. After trial, Landlord moved to “reargue” and in on their premises. In or about March Yaroshenko v. Lamonica (33401/01)— Dzenis v. Maimonides Medical Center Patterson, J„ taldng no part. a judgment was entered against defen­ connection with the motion submitted 2003, plaintiffs commenced this action Motion Granted (24248/99)—Motion Withdrawn dant Benito DeChiara (appellant). On affidavits and documentary evidence to seeking $15,000 in damages for each of Mercado v. Madden (4391/04)— First Mutual Corp. v. Davis appeal, appellant contends that he is not the effect that it had attempted on multi­ their three causes of action, sounding in Motion Withdrawn (29238/03)—Motion Withdrawn JUEHCMAL BICTRICTS liable to plaintiff because, among other ple occasions to obtain compliance with negligence, breach of contract and Moncaca v. Porter (47544/03)— Gill v. Lieber (48308/02)—Motion By; McCabe, RJ.; RudssSph things, he never entered into a contract' the no-pet clause. The court (K. Gartner, breach of warranty. Defendants moved to Motion Withdrawn Granted and Angfolillo, JJ. with plaintiff. J.) granted this motion and ordered a dismiss the complaint on various grounds including that the statute of limi­ Lorquet v. Express New Way Deli Karris v, Joseph (10040/03)—Motion “It is well settled that where, as here, a trial, following which final judgment in (5942/04)—Motion Granted PEOPLE, res., v. DWAN PRINCE, ap — case has been tried without a jury, this favor of landlord was entered on May 14, tations had expired, the damages sought Withdrawn Motion by defendant-appellant to vacate by plaintiffs exceeded the court’s subject Louy v. Nrf Plumbing & Heating Herbert v. Bove (40955/02)—Motion Court’s ‘power to review the evidence is 2003 (J. Asarch, J.). dismissal of the appeal is granted on as broad as that of the trial court, bearing The court below properly vacated its matter jurisdiction, and that documen­ (4216/04)—Motion Granted Granted condition that the appeal is perfected by in mind, of course, that due regard must decision and order based upon the stipu­ tary evidence established that the action Non-Jury Settlement Tri Pl Holder v.. (18923/04)—Case Disposed October 1, 2004; otherwise motion be given to the decision of the Trial lation of facts and set the matter down was interposed against an improper Jacobs V. Board of Elections in The Barrios v. Farkas (44935/99)—Motion City (23313/04)—Case Disposed denied. Judge who was in a position to assess the for trial, as the stipulation was insuffi­ party, to wit, defendant Reality Roofing of Granted evidence and the credibility of the wit­ cient to enable the court to enter judg­ Mineola, Inc. By order entered July 18, Knight V. NY Eye & Ear Infirmary PEOPLE, res,, v. ROBERT MACHO, ap Perkins v. Kilgore (17819/03)—Motion (47587/01)—Motion Granted — Motion by the People to enlarge their nesses'....Moreover, the trial court's ment (see CPLR 3222 [b] [5]). The 2003, the court below denied defendants’ Withdrawn determination will not generally be dis­ stipulation of facts was silent as to land­ motion. Kolacki v. Aishel Avraham time to serve and file a respondent's Central Compliance Part (11279/03)—Motion Granted brief is granted, and said brief shall be turbed on appeal unless it could not have lord’s course of conduct concerning ten­ An action for properly damage against been reached under any fair interpreta­ ants’ dog, and the court properly contractors arising out of the perform­ Birnbaum v. Rabbit Messenger, Inc. Kuznetsov v. Kingsbrook Jewish Med­ served and filed within 21 days of the ical (7929/99)—Motion Withdrawn order hereon. tion of the evidence..(Koslowski v. concluded that it could not determine ance or nonperformance of obligations (16585/03)—Grant Ext Short Form Koslowski, 297 AD2d 784, 784-785 [2002] therefrom that landlord had failed to act under a contract is governed by the six- Order Lorav. Roslin (44258/01)—Motion Defendant, if he be so advised, may serve and file a reply within 14 days of [citations omitted]: see also Vizzari v. to remove the dog despite knowledge of year contract statute of limitations (see Charles v. Kamco Supply Corp. Granted the filing of the respondent’s brief. Hernandez, 1 AD3d431 [2003] [same]). its presence “by inference from the facts Sears. Roebuck & Co. v. Enco Assoc., 43 (5935/02)—Grant Ext Short Form Order Miniel v. NYCH&HC (17868/04)— stipulated” (CPLR 3222 [b] [4]). NY2d 389, 395 [1977]; Bank of Nova Sco­ Geyer v. Interfaith Medical Center Motion Granted Cj^CIO, ap., V. HALL, res — Motion by “A contract implied in fact may result tia v. Structure-Tone, Inc., 303 AD2d 273 Moore V. NYCH&HC (34112/03)— “No-pet” clauses have been held to be (49062/02)—Motion Withdrawn plaintiff-appellant for reargument, or in as an inference from the facts and cir­ [2003]; see also Cabrini Med. Center v. Motion Granted cumstances of the case although not for­ enforceable and to be substantial obliga­ Hanna v. NYCHA (4936/97)—Grant Ext the alternative, leave to appeal to the tions of the tenancy (Pollack v. Green Desina, 64NY2d 1059,1061 [1985]; Ruff­ Murat V. Board of Elections in The City Appellate Division denied. mally stated in words ... and is derived Short Form Order Constr. Corp., 40 AD2d 996 [1972], affd 32 ing v. Union Carbide Corp,, 308 AD2d 526 Lopez v. Reyes (38165/02)—Motion (23304/04)—Case Disposed from the ‘presumed’ intention of the par­ [2003]). Since plaintiffs’ first cause of Nickles V. St. Mary’s Hosp. PEOPLE, res., V. HARRY RICHARDSON, ties as indicated by their conduct” NY2d 720 [1973]; Matter of Paulsen Real Withdrawn ap — That branch of the motion by Estate Corp. v. Grammick, 244 AD2d 340 action sounding in negligence is based on (28120/03)—Motion Withdrawn (Jemzura v. Jemzura, 36 NY2d 496,503- Lorente v. Prestij Transporation, Inc. defendant-appellant seeking to vacate [1998]). The lease contains a provision the contract between the parties, and it NYCTL 1998-2 Trust v. Davis 504 [1975] [citations omitted]; Matter of is uncontroverted that defendants com­ (46107/01)—Case Disposed dismissal of the appeal granted on con­ that its terms may be waived only by (19462/01)—Motion Granted Argersinger„168AD2d 757, 758 [1990]). pleted the work by May 21,1999, the Martinez v. Rodriguez (47060/02)— dition the appeal is perfected by written agreement, and it is undisputed Parris v. Jast (19165/04)—Motion However, a court cannot find the exis­ court below properly determined that Grant Ext Short Form Order September 3, 2004; otherwise motion tence of a contract implied in fact if the that landlord and tenants in this matter did not enter into such an agreement. the statute of limitations had not expired Moore V. NYCH&HC (34112/03)— Denied I denied. facts are inconsistent with its existence Grant Ext Short Form Order Rodriguez v. Greenberg (23962/03)— That branch of the motion seeking to While even a nonwaiver clause may be as to said cause of action (see CPLR 213 Motion Granted (see Lubeck Realty v. Flintkote Co., 170 [2]). However, inasmuch as both the first Neil V. Thayer (3527/03)—Restored in reinstate and continue the stay of execu­ waived in some circumstances, generally Russo V. St.Vincent’s Catholic Medical AD2d 800 [1991]; see also 22A NY Jur 2d, and second causes of action assert iden­ Regular Order tion of judgment pending determination Contracts §510). as evidenced by the conduct of the par­ (23130/04)—Motion Granted ties, beyond the mere acceptance of rent tical reach of contract claims, the first Nelson v. Mondesir (22099/96)— of appeal is granted. The evidence adduced at trial estate Granted Short Form Order Tenenbaum v. Padilla (39014/03)— (see e.g. Dice v. Inwood Hills Condomini­ cause of action is dismissed as duplica­ Motion Granted PEOPLE, res., v. DOREEN BRADY, ap fished that plaintiff's president and appel­ Petretic v. Axelrod (39012/03)— lant had a long-standing business and um, 237 AD2d 403 [1997]), the evidence tive. Tenenbaum v. Padilla (39014/03)— — Motion by defendant-appellant for an adduced at trial, including providing the The monetary jurisdictional limit of the Restored in Regular Order extension of time to take an appeal is personal relationship with each other Santana v. Barker (8476/03)—Grant Motion Withdrawn lease to tenants with the no-pets clause District Court is $15,000, exclusive of Welcome v. Genevieve Reilly z'orizbtinn tbo artnoal ic falron during which a considerable amount of Fvf ‘»hnrt Fnrm Drrfpr