Wynkoop v. 622a President St. Owners Corp.

169 A.D.3d 1106

95 N.Y.S.3d 219

Brett WYNKOOP, et al., Appellants,

v.622A PRESIDENT STREET OWNERS CORP., et al., Respondents.

2016–05842

2016–11142

Index No. 507156/13

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

Argued—October 19, 2018

February 27, 2019

Brett E. Wynkoop and Kathleen Keske, Brooklyn, NY, appellants pro se.

Mandel Bhandari, LLP, New York, N.Y. (Rishi Bhandari and Donald Conklin of counsel), for respondents Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, and for injunctive relief, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated April 11, 2016, and (2) an order of the same court dated July 25, 2016. The order dated April 11, 2016, denied the plaintiffs' motion for leave to renew their opposition to a motion of the defendants Kyle Taylor and Rajeev Subramanyam to confirm a referee's report, and granted the motion of the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam to impose sanctions upon the plaintiffs. The order dated July 25, 2016, insofar as appealed from, denied those branches of the plaintiffs' motion which were for summary judgment dismissing the counterclaims asserted by the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam, and to vacate a preliminary injunction against them.

ORDERED that the order dated April 11, 2016, is affirmed, without costs or disbursements; and it is further,

ORDERED that the order dated July 25, 2016, is modified, on the law and the facts, by deleting the provision thereof denying that branch of the plaintiffs' motion which was for summary judgment dismissing the counterclaims alleging breach of contract based on the improper use or occupancy of the building cellar, and substituting therefor a provision granting that branch of the plaintiffs' motion; as so modified, the order dated July 25, 2016, is affirmed insofar as appealed from, without costs or disbursements.

This action involves a dispute over the management of the defendant 622A President Street Owners Corp. (hereinafter the corporation). By order dated September 15, 2015, the Supreme Court granted the motion of the defendants Kyle Taylor and Rajeev Subramanyam to confirm a referee's report regarding a shareholders' election of a board of directors, which was supervised by the referee. By order dated April 11, 2016, the court denied the plaintiffs' motion for leave to renew their opposition to the motion to confirm the referee's report, and granted the motion of the defendants Kyle Taylor, Hilary Taylor, and Rajeev Subramanyam (hereinafter collectively the individual defendants) to impose sanctions on the plaintiffs. By order dated July 25, 2016, the Supreme Court, inter alia, denied those branches of the plaintiffs' motion which were for summary judgment dismissing the counterclaims asserted by the individual defendants and to vacate a preliminary injunction against them.

We agree with the Supreme Court's denial of the plaintiffs' motion for leave to renew their opposition to the individual defendants' motion to confirm the referee's report. In support of their motion, the plaintiffs did not submit any newly-discovered facts or evidence that would have changed the prior determination (see CPLR 2221[e] ; Union Temple of Brooklyn v. Seventeen Dev., LLC, 162 A.D.3d 710, 713, 79 N.Y.S.3d 194 ; Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 157 A.D.3d 852, 853, 70 N.Y.S.3d 521 ). Further, the court providently exercised its discretion in granting the individual defendants' motion to impose sanctions on the plaintiffs in connection with their motion for leave to renew (see 22 NYCRR § 130–1.1 [c]; Pathak v. Shukla, 164 A.D.3d 687, 81 N.Y.S.3d 549 ; Kucker v. Kaminsky & Rich, 7 A.D.3d 491, 776 N.Y.S.2d 72 ).

Contrary to the individual defendants' contention, the plaintiffs' motion for summary judgment dismissing the their counterclaims did not constitute an improper successive motion for summary judgment, as the plaintiffs' prior motion was to dismiss the counterclaims pursuant to CPLR 3211(a), and discovery was exchanged subsequent to the disposition of that prior motion (see Walker v. Kramer, 162 A.D.3d 827, 828, 79 N.Y.S.3d 203 ; Torres v. Kalmar, 136 A.D.3d 457, 24 N.Y.S.3d 625 ).

The plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the counterclaims alleging breach of contract based on the improper use or occupancy of the cellar within the corporation's building. In support of their motion, the plaintiffs submitted, inter alia, copies of the proprietary lease they signed in 1995 and signed by the defendant Rajeev Subramanyam in 2006 and the defendant Kyle Taylor in 2010. The proprietary lease contained a rider granting to the owners of Unit 1 sole use of the cellar, subject to section 7(a) of the proprietary lease. Those defendants do not specifically dispute that the proprietary lease contains such a provision, and there is no language in the proprietary lease contradicting the terms of the subject rider.

As to the alleged building code and/or regulatory violations alleged by the individual defendants, the plaintiffs submitted, inter alia, plans approved by the New York City Department of Buildings in 1986 for renovations of the cellar, showing compliance with regulations regarding the means of egress in areas served by a spiral staircase (see Multiple Dwelling Law § 54 ), and the presence of windows in the cellar of the subject building (see New York City Admin. Code §§ 27–2086). The plaintiffs also submitted the affidavit of an architect who stated that the renovations conformed to those plans. In opposition, the defendants failed to raise a triable issue of fact as to any existing building code or regulatory violations regarding the use or occupancy of the cellar. Therefore, the plaintiffs are entitled to summary judgment dismissing the counterclaims alleging breach of contract based on the use or occupancy of the cellar (see Board of Mgrs. of Honto 88 Condominium v. Red Apple Child...