Levy v. 103-25 68th Ave. Owners, Inc.

204 N.Y.S.3d 111

223 A.D.3d 728

Salomon LEVY, et al., respondents,

v.103-25 68TH AVENUE OWNERS, INC., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 12, 2023

January 17, 2024

Gartner + Bloom, P.C., New York, NY (Arthur P. Xanthos of counsel), for appellants.

Charles A. Termini, Oceanside, NY, for respondents.

VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, LILLIAN WAN, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for housing discrimination, the defendants 103-25 68th Avenue Owners, Inc., John P. Lovett & Associates, Ltd., Dagmara K. Krasa, Michael L. Marks, and Pat Jennings appeal from (1) an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered February 7, 2022, and (2) an order of the same court entered February 14, 2022. The order entered February 7, 2022, insofar as appealed from, denied those branches of those defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the second cause of action and the ninth cause of action insofar as asserted against them. The order entered February 14, 2022, denied those defendants’ motion to impose sanctions upon the plaintiffs.

ORDERED that the order entered February 7, 2022, is reversed insofar as appealed from, on the law, and those branches of the motion of the defendants 103-25 68th Avenue Owners, Inc., John P. Lovett & Associates, Ltd., Dagmara K. Krasa, Michael L. Marks, and Pat Jennings which were pursuant to CPLR 3211(a) to dismiss the second cause of action and the ninth cause of action insofar as asserted against them are granted; and it is further,

ORDERED that the appeal from the order entered February 14, 2022, is dismissed as abandoned; and it is further,

ORDERED that one bill of costs is awarded to the defendants 103-25 68th Avenue Owners, Inc., John P. Lovett & Associates, Ltd., Dagmara K. Krasa, Michael L. Marks, and Pat Jennings.

The plaintiffs are the former proprietary lessees of a cooperative apartment located in Forest Hills. The plaintiffs were involved in a prolonged noise dispute with the occupants of a neighboring apartment, during which many complaints were made to the defendants 103-25 68th Avenue Owners, Inc., the cooperative corporation, John P. Lovett & Associates, Ltd., the cooperative’s management company, and Dagmara K. Krasa, Michael L. Marks, and Pat Jennings, individual members of the cooperative's board of directors (hereinafter collectively the co-op defendants). After attempts were made to resolve the dispute, including a formal mediation, and to enforce the cooperative’s rules concerning noise, the board of directors voted to terminate the plaintiffs’ lease, and an eviction proceeding was commenced against the plaintiffs. The plaintiffs subsequently moved out of the apartment and ultimately sold their shares in the cooperative corporation.

In June 2018, the plaintiffs commenced this action against the co-op defendants and the occupants of the neighboring apartment, alleging, inter alia, that the coop defendants exceeded the scope of their authority, discriminated against them for having children, and acted in bad faith. The co-op defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against them. They subsequently moved to impose sanctions upon the plaintiffs. In an order entered February 7, 2022, the Supreme Court denied those branches of the co-op defendants' motion which were to dismiss the second cause of action and the ninth cause of action insofar as asserted against them and granted those branches of the motion which were to dismiss the remaining causes of actions insofar as asserted against them. In an order entered February 14, 2022, the court denied the coop defendants’ motion to impose sanctions upon the plaintiffs. The co-op defendants appeal.

[1] The co-op defendants’ appeal from the order entered February 14, 2022, must be dismissed as abandoned, as their brief does not request modification or reversal of any portion of that order (see Canberg v. County of Nassau, 214 A.D.3d 943, 944, 187 N.Y.S.3d 237; Ashfaq v. Ice Cream Depot Corp., 209 A.D.3d 704, 706, 176 N.Y.S.3d 108).

[2, 3] "To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Patel v. Gardens at Forest Hills Owners Corp., 181 A.D.3d 611, 612, 120 N.Y.S.3d 354 [internal quotation marks omitted]; see Goshen v. Mutual Life Ins. Co. of N. Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must " ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " (Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720, quoting Leon v. Martinez, 84 N.Y.2d at 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Nonetheless, "conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss" (Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328; see Young v. 101 Old Mamaroneck Rd. Owners Corp., 211 A.D.3d 771, 774, 180 N.Y.S.3d 224). Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it (see Leon v. Martinez, 84...