Brookes v. 157th St. Assoc., LLC

Brookes v 157th St. Assoc., LLC 2024 NY Slip Op 32571(U) July 25, 2024 Supreme Court, New York County Docket Number: Index No. 160664/2020 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 160664/2020 NYSCEF DOC, NO. 155 RECEIVED NYSCEF: 07/25/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ---------------------- ----------X INDEX NO. 160664/2020 COLIN BROOKES, CELIA HATTON, RAVENNA UPCHIK, KAREN POLESHUCK, MAX JACOB, ISAAC HAYWARD MOTION DATE 11/06/2023

Plaintiffs, MOTION SEQ. NO. 003

- V - DECISION + ORDER ON 157TH STREET ASSOCIATES, LLC, MOTION Defendant. ---------------------------------------------- ------X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 135, 136, 137, 138, 139, 140, 141, 142, 143,144,145, 146,148,149 were read on this motion to/for REAR GU MENT/RECONSI DERATION

Upon the foregoing documents, and after oral argument which took place on March 26,

2024, Defendant 157th Street Associates, LLC's ("Defendant"), motion for leave to reargue the

Court's Supplemental Decision and Order dated September 18, 2023 (NYSCEF Doc. 143) is

granted. Upon reargument, Defendant's motion for prospective use and occupancy is granted, and

Plaintiffs Karen Poleshuck ("Poleshuck"), Michael Jacob ("Jacob"), and Isaac Hayward

("Hayward") are ordered to post a bond to cover their potential liability for past use and occupancy.

I. Background and Procedural History

By Decision and Order filed May 2, 2023 (Mot. Seq. 002) the Court, inter alia, granted

Defendant's motion for use and occupancy (NYSCEF Doc. 140). Recognizing that the amount

owed in use and occupancy may have increased since Defendant first moved for use and occupancy

on July 26, 2022 and that certain tenants have vacated the premises, the Court directed Defendant

to file an updated ledger regarding the use and occupancy owed by each Plaintiff as of the date of

the Mot. Seq. 002 Decision and Order (Id.).

160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 1 of 6 Motion No. 003

[* 1] 1 of 6

INDEX NO. 160664/2020 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 07/25/2024

On May 9, 2023 Defendant filed an affidavit of Konstantinos Kapelonis ("Kapelonis'),

Defendant's Managing Member, which stated that Plaintiffs Poleshuck, Jacob and Hayward

remain in possession of their apartments (NYSCEF Doc. 128). Regarding Poleshuck, Kapelonis

stated that her last executed lease, which expired on June 30, 2021, was for a monthly rent of

$²,450.00, and that Poleshuck had not paid rent since April 2022 (Id.). Regarding Jacob, Kapelonis

stated that his last executed lease, which expired on June 30, 2022, was for a monthly rent of

$2,550.00, and that Jacob had not paid rent for the months of January 2022 through October 2022

(Id.). Finally, with respect to Hayward, Kapelonis stated that his last executed lease, which expired

on June 30, 2020, was for a monthly rent of $2,200.00, and that Hayward had not paid rent since

December 2020 (Id.). On May 9, 2023 Defendant submitted a Rent Ledger corroborating the

monthly payments asserted by Kapelonis and showing that Poleshuck owed rental arrears in the

amount of$31,850.00, Jacob owed arrears in the amount of $27,950.00, and Hayward owed arrears

in the amount of $63,800.00 (NYSCEF Doc. 129).

On September 18, 2023 the Court issued a Supplemental Decision and Order ordering

Poleshuck, Jacob and Hayward to pay Defendant ongoing use and occupancy pendente lite at the

monthly rates set by their last executed leases until their apartments were properly surrendered or

this matter has been discontinued, whichever comes sooner (NYSCEF Doc. 143 at 3-4).

On November 5, 2023 Defendant brought the instant motion to reargue the Court's

September 18, 2023 Supplemental Decision and Order on the ground that the Court overlooked

the award of past use and occupancy included in the Mot. Seq. 002 Decision and Order filed May

2, 2023 (NYCEF Doc. 136).

[The remainder of this page is intentionally left blank]

160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 2 of 6 Motion No. 003

INDEX NO. 160664/2020 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 07/25/2024

INDEX NO. 160664/2020 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 07/25/2024

INDEX NO. 160664/2020 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 07/25/2024

ORDERED that Plaintiff Michael Jacob shall pay to Defendant 157th Street Associates,

LLC ongoing use and occupancy pendente lite at a rate of $2,550.00 per month from October 1,

2023, until Apartment 5E is properly surrendered or this matter has been discontinued, whichever

comes sooner; and it is further

ORDERED that Plaintiff Michael Jacob shall post a bond in the amount of $10,200.00 as

security for potential liability for rental arrears from July 2022 through September 2023; and it is

further

ORDERED that Plaintiff Isaac Hayward shall pay to Defendant 157th Street Associates,

LLC ongoing use and occupancy pendente lite at a rate of $2,200.00 per month from October 1,

2023, until Apartment 6EE is properly surrendered or this matter has been discontinued, whichever

comes sooner; and it is further

ORDERED that Plaintiff Isaac Hayward shall post a bond in the amount of $28,600.00 as

security for potential liability for rental arrears from July 2022 through September 2023; and it is

further

ORDERED that the parties are directed to submit a proposed Compliance Conference

Order to the Court on or before September 10, 2024 via e-mail to SFC-Part33-

Clerk@nycourts.gov. If the parties are unable to agree to a proposed Compliance Conference

Order, the parties are directed to appear for an in-person compliance conference with the Court on

September 11, 2024 at 9:30 a.m. in 60 Centre Street, Room 442, New York, New York; and it is

further

ORDERED that within 10 days of entry, counsel for Defendant 157th Street Associates,

LLC shall serve a copy of this Decision and Order, with notice of entry, upon all parties to this

action; and it is further

160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 5 of6 Motion No. 003

[* 5] 5 of 6

INDEX NO. 160664/2020 NYSCEF DOC. NO. 155 RECEIVED NYSCEF: 07/25/2024

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

7/25/2024 DATE Hd>N. MARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED ~ NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART Q OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 6 of 6 Motion No. 003

[* 6] 6 of 6

Footnotes

[2] of 6 [* 2] II. Discussion a. Leave to Rcargue is Granted Pursuant to CPLR § 2221(d), a motion for reargument should be granted where the Court overlooks or misapprehends issues of fact or law (Smith v City of Buffalo, 997 NYS2d 563, 564 [2014]). Here, the Court agrees with Defendant that certain issues of fact were overlooked. Specifically, in its Supplemental Decision and Order dated September 18, 2023, the Court awarded Defendants use and occupancy from Plaintiffs Karen Poleshuck, Michael Jacob and Isaac Hayward pendente lite, and overlooked the intention of the Court's Decision and Order on Mot. Seq. 002 filed May 2, 2023, to consider past use and occupancy upon submission of Defendant's Rent Ledger (NYSCEF Doc. 140). b. Defendant's Motion for Use and Occupancy Upon reargument, the Court's September 18, 2023 Order remains unchanged with respect to prospective use and occupancy and Defendant is awarded ongoing use and occupancy pendente lite from Plaintiff Poleshuck at a rate of $2,450.00 per month; from Plaintiff Jacob at a rate of $2,550.00 per month; and from Plaintiff Hayward at a rate of $2,200.00 per month, beginning October 1, 2023. Additionally, Plaintiffs Poleshuck, Jacob and Hayward are ordered to post a bond to cover their potential liability for past use and occupancy from July 2022 (the date Defendant first moved for use and occupancy) through September 2023 (the date of the Court's initial Supplemental Decision and Order on Mot. Seq. 002). While Poleshuck, Jacob and Hayward dispute the amount of arrears claimed by Defendant (NYSCEF Docs. 142), it is well settled that "a dispute concerning the amount of rent owed is no reason to allow a tenant to occupy the landlord's real property gratis" (Levinson v 390 W End Assoc., L.L.C., 22 AD3d 397,403 [1st Dept 2005]). 160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 3 of 6 Motion No. 003

[3] of 6 [* 3] In support of the instant motion, Defendant has provided an updated rent ledger showing that for the period between July 2022 and September 2023, Poleshuck owes rental arrears in the sum of $26,950.00, Jacob owes rental arrears in the sum of $10,200.00 and Hayward owes rental arrears in the sum of $28,600.00 (NYSCEF Doc. 144). As such, Poleshuck is ordered to post a bond in the sum of $26,950.00, Jacob is ordered to post a bond in the sum of $10,200.00 and Hayward is ordered to post a bond in the sum of $28,600.00. Accordingly, it is hereby, ORDERED that Defendant 157th Street Associates, LLC's motion for leave to reargue the Court's Supplemental Decision and Order dated September 18, 2023 is granted; and it is further ORDERED that upon reargument, Defendant 157th Street Associates, LLC's motion for prospective use and occupancy is granted, and Plaintiffs Karen Poleshuck, Michael Jacob, and Isaac Hayward are each ordered to post a bond to cover their potential liability for past use and occupancy; and it is further ORDERED that Plaintiff Karen Poleshuck shall pay to Defendant 157th Street Associates, LLC ongoing use and occupancy pendente lite at a rate of $2,450.00 per month from October 1, 2023, until Apartment 4A is properly surrendered or this matter has been discontinued, whichever comes sooner; and it is further ORDERED that Plaintiff Karen Poleshuck shall post a bond in the amount of $26,950.00 as security for potential liability for rental arrears from July 2022 through September 2023; and it is further [The remainder of this page is intentionally left blank] 160664/2020 BROOKES, COLIN vs. 157TH STREET ASSOCIATES, LLC Page 4 of 6 Motion No. 003 [* 4] 4 of 6